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Full text of "International law studies : prisoners of war in international armed conflict"

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For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC. 20402 

Stock No. 008-047-00257-2 



INTERNATIONAL LAW STUDIES 

Volume 59 



PRISONERS OF WAR 

IN 

INTERNATIONAL ARMED CONFLICT 

by 
Howard S. Levie 

SAINT LOUIS UNIVERSITY LAW SCHOOL 



Prisoner of War ! That is the least unfortunate kind of prisoner 
to be, but it is nevertheless a melancholy state. You are in the 
power of your enemy. You owe your life to his humanity, and 
your daily bread to his compassion. You must obey his orders, 
go where he tells you, stay where you are bid, await his pleasure, 
possess your soul in patience. 

Winston S. Churchill 

A Roving Commission 259 (1930) 



NAVAL WAR COLLEGE 
INTERNATIONAL LAW STUDIES 

Volume 59 

Published by the Naval War College Press 

U.S. Naval War College, Newport, Rhode Island 02840 

Library of Congress Catalog Card Number : 78-5135 

Manufactured in the United States of America 



Library of Congress Cataloging in Publication Data 

Levie, Howard S., 1907- 

Prisoners of war in international armed conflict. 

(International law studies; v. 59) 

Bibliography: p. 602 

Includes index. 

1. Prisoners of war. I. Title. II. Series: United States. 
Naval War College. International law studies; v. 59. 
JX1295.U4 vol. 59 [JX5141] 341s [341.6'5] 78-5135 



FOREWORD 

Since the founding of the Naval War College in 1884, the study 
of International Law has been an important part of its curriculum. 
From 1894 to 1900 the College compiled and printed, for a limited 
distribution, a number of lectures on International Law together with 
the situations studied. In 1901, the first formal volume of the "Blue 
Book" series was published. Thereafter, the series continued on an 
annual basis until the mid-1960s. 

With the establishment of a revised resident curriculum at the 
Naval War College, Richard L. Lillich, Professor of Law at the Uni- 
versity of Virginia Law School and former (1968-1969) holder of 
the Naval War College Stockton Chair of International Law, con- 
ducted a comprehensive reappraisal of the need for and value of the 
"Blue Book" series. As a result of this study, the College has decided 
to reinstitute its series in order to publish timely treatises and articles 
concerning important areas of International Law. 

With this background, it is my pleasure to write the foreword to 
this volume, the fifty-ninth of the series, by Professor Howard S. 
Levie, recently of the Saint Louis University School of Law, who occu- 
pied the Charles H. Stockton Chair of International Law at the Naval 
War College during the 1971-1972 academic year. In light of the 
recent experiences of the American prisoners of war in Vietnam, 
Professor Levie's excellent study of the Geneva Convention Relative 
to the Treatment of Prisoners of War could not be more appropriate. 
The development of a total understanding of the rules of law which 
govern the treatment of prisoners of war is essential in order to pro- 
mote those principles of humanitarianism necessary to regulate an 
all too often imperfect world. 

The opinions expressed in this volume are those of the author and 
are not necessarily those of the United States Navy or the Naval 
War College. 

James B. Stockdale 
Vice Admiral, U.S. Navy 
President 



ill 



PREFACE 

Pope Pius XII once said : 

The treatment of prisoners of war and of the civilian population 

of occupied areas is the most certain measure and index of the 

civilization of a people and of a nation. 
Perhaps in recognition of this "index of civilization," the representa- 
tives of most of the members of the then world community of nations 
met in Geneva in 1949 and drafted four conventions for the protection 
of war victims, conventions which, as of 1 June, 1977, had been rati- 
fied or adhered to by 143 nations. (See Appendix B.) The third one 
of those conventions, the 1949 Geneva Convention Relative to the 
Treatment of Prisoners of War is the subject of this monograph. It 
will be noted that the title of this volume specifically limits the dis- 
cussion to the status of prisoners of war in international armed con- 
flict. Cognate problems arising in cases of internal conflict have so 
proliferated in recent years as to make that a subject requiring and 
warranting a study limited exclusively to that field. This task I leave 
to others who have already produced a number of articles on various 
aspects of the problem. 

It will undoubtedly be said by some that the international law of 
the subject discussed herein, and hence this volume, is concerned 
with a situation which will never recur, that the era of large-scale 
long drawn-out wars has ended, that the arrival of the atomic age 
has made obsolete the rules of international law contained in such 
documents as the four 1949 Geneva Conventions for the Protection 
of War Victims. Unfortunately, there is just no reason to believe that, 
however many "pacts," "charters," "codes," or "conventions" are 
entered into by the nations of the world, this will have the effect of 
eliminating armed conflict as a method of settling disputes between 
nations. And the 1949 Geneva Conventions are properly geared to 
govern "little" wars, such as Korea, the Middle East, India-Pakistan, 
China-India, Vietnam, etc., etc., as well as "big" wars, such as World 
War I and World War II. While the total elimination of international 
armed conflict as a method of settling disputes between nations is 
certainly an end devoutly to be sought, I am afraid that I am too much 
of a pragmatist to believe that such an end is just around the next 
corner. However, should the millennium actually arrive in the near 
future, it is hoped that this volume will still have some historical 
value as an indication of the status of an important segment of inter- 



VI 

national law at the very moment when a major change in human 
nature rendered it archaic. 

The International Committee of the Red Cross (ICRC), which may 
well be considered to be both the midwife and the guardian of the 
1949 Conventions, has frequently pointed out that it cannot interpret 
those Conventions, that this is a power residing exclusively in the 
Contracting Parties. Nevertheless, there are few publications of the 
ICRC which do not discuss and interpret some facet of the Conven- 
tions. Similarly, I do not purport to speak with an authoritative voice 
when I present my views on various aspects of the 1949 Prisoner-of- 
War Convention; but it would be naive, indeed, to assume that I do 
not believe that the views expressed herein with respect to the mean- 
ing and intent of the provisions discussed represent the proper inter- 
pretations thereof. In this regard, it should be noted that occasions 
will be found in which my views are not in accord with the consensus 
of writings by representatives of the ICRC. When this occurs it may 
undoubtedly be ascribed to the fact that the latter are uniformly 
motivated by idealistic concepts, as representatives of that great 
humanitarian organization should and must be, while I have, in some 
instances, felt it more appropriate to present what I consider to be a 
practical, workable interpretation which would be acceptable to nations 
at war. 

Unquestionably, the comments and point of view of any writer will, 
to some extent and despite all efforts to the contrary, be colored by 
his personal experiences and by his nationality with the resultant 
more extensive availability of materials originating in his own coun- 
try and in his own language for empirical research. A conscious effort 
has been made to avoid such a chameleonlike result. I have attempted 
to present the subject from as international and multinational a point 
of view as possible. Thus, examples have been cited from the prac- 
tice of as many and as varied a group of countries as could be found. 
If it appears that a good deal of reliance is placed upon practices fol- 
lowed by the United States and the United Kingdom, and contemplated 
by those two countries in the event of any future international armed 
conflict in which they are involved, this is not because of any chauvin- 
ism, any feeling that such practices are superior to those of other 
countries, but only because those two countries appear to have made 
information concerning their practices, past and future, more readily 
available to the researcher. For example, in the Foreword to Volume 
XV of the Laiv Reports of Trials of War Criminals, prepared and 
published by the United Nations War Crimes Commission, Lord 
Wright, the Chairman of the Commission, lists the number of cases 
received from each country (1,333 out of 1,911 were from the United 
States or United Kingdom ; none was received from any country now 
Communist except Poland) and points out that all nations which were 



VII 

members of the Commission were invited to forward records of the 
trials conducted by them, but that many did not do so ; and both the 
United States and the United Kingdom have, since the end of World 
War II, issued well-documented military manuals, something that 
appears to be the exception rather than the rule. Moreover, this book 
was written in the United States, most of the research was done 
there (although considerable use was made of the facilities of the 
Library of the Peace Palace in The Hague), United States materials 
were the most readily available, and my personal experiences in this 
field have been largely, though not exclusively, U.S. -oriented. Despite 
these shortcomings, it is believed that the reader will find a fairly 
well balanced presentation with justifications advanced, in appropriate 
instances, for German practices during World War II and, more 
rarely, even for some Japanese practices during that holocaust. If, at 
times, exceptions appear to be taken to policies adopted and practices 
followed in this area by a number of countries of Communist persua- 
sion, that is because, unfortunately, these countries have almost uni- 
formly demonstrated again and again, both during World War II and 
since, that where it suits their purposes, they will arbitrarily interpret 
a Convention in their own interests and against the interests of the 
prisoners of war whom they hold, or even disregard the Convention 
in its entirety. 

This volume is not intended to be a mere update or supplement to 
the work so ably done by Dr. Jean S. Pictet, Dr. Jean de Preux, and 
their collaborators, in the production of the ICRC's Commentary on 
the Prisoner-of-War Convention. It is believed that it will be found 
that both the format and the critical content differ substantially from 
those of the Commentary. As regards the format, it must be noted 
that in drafting the 1949 Convention the members of the various 
preliminary conferences called by the ICRC which did the spadework, 
and the 1949 Geneva Diplomatic Conference, which brought the 1949 
Geneva Prisoner-of-War Convention to its final accepted form, at- 
tempted — with only partial success — to adopt a functional approach 
and to proceed, section by section, and chapter by chapter, from one 
area of interest to another. I say that they were only partially suc- 
cessful because so many subjects are actually dealt with in numerous, 
scattered articles. (For example, rules relating to the food of prison- 
ers of war may be found in Articles 15, 20, 26, 44, 45, and 51.) It 
appeared to me that in order to be most useful to the people actually 
concerned with prisoner-of-war problems in the field in time of inter- 
national armed conflict, as well as the representatives of the Protect- 
ing Powers, the legal advisers of the Foreign Offices and War Minis- 
tries of the belligerent Powers, and the academic researchers, the 
best method of presentation would be one which would follow the 
prisoner of war from the moment of his capture to his ultimate release 



VIII 

and repatriation, with elaboration on certain major problems. Accord- 
ingly, the format adopted is on a completely functional basis, avoiding 
to the maximum extent possible the article-by-article approach found 
in the Commentary, bringing together and correlating all of the num- 
erous and scattered provisions of the 1949 Convention which are con- 
cerned with any particular facet of the problem. (An exception to this 
format will be found in Chapter I, which deals with most of the so- 
called Common Articles — articles which appear in all four of the 
1949 Geneva Conventions. The discussion of these articles necessarily 
falls outside of the general pattern, as these provisions are usually 
unrelated to any other provisions and must, therefore, be discussed 
individually.) 

As regards the critical content, the users of this volume will, I fear, 
find only faint traces of the optimistic idealism which characterizes 
the Commentary. There the authors were, and properly so, motivated 
by the pure humanitarianism which constitutes the raison d'etre of 
the ICRC. In numerous instances they indubitably interpret the pro- 
visions of the Convention as they would like to see them interpreted 
and applied by the adverse belligerent Parties. Here, I have endeav- 
ored to provide both hard data and a personal estimate as to what 
the 1949 Diplomatic Conference meant when it drafted the various 
provisions of the Prisoner-of-War Convention, what States meant 
when they ratified or adhered to it, what States have done when it 
has become necessary for them to apply the Convention, and what 
they may be expected to do if it becomes necessary for them to apply 
it in the future. In other words, this book endeavors to present the 
Convention pragmatically, rather than idealistically. Of course, where 
the State practice which is available indicates blatant disregard and 
violation of the Convention, rather than disputed interpretation, this 
is clearly stated and is not considered as a precedent-making 
interpretation. 

I have been fortunate in that I have had a number of opportunities 
to observe at first hand many facets of operations relating to prisoners 
of war during the course of World War II, Korea, and the last India- 
Pakistan conflict. (I spent a full day in the prisoner-of-war camp at 
Koje-do, in Korea, just a few weeks before that name became famous 
throughout the world!) Unfortunately, I cannot say the same with 
respect to the much more recent prisoner-of-war operations which 
occurred during the hostilities in Vietnam. The reluctance of the 
North Vietnamese (like that earlier of the North Koreans and Chinese 
Communists) to provide any hard information with respect to their 
treatment of prisoners of war is well known. 

In 1973, after a number of preliminary conferences of various 
groups of experts, the ICRC produced two Draft Additional Protocols 
to the 1949 Geneva Conventions to serve as the working documents 



IX 

for a Diplomatic Conference called by the Swiss Federal Council to 
meet in Geneva in February 1974. That Diplomatic Conference was 
considerably less successful than had been hoped, with the result that 
it has since met in 1975 and 1976, and will meet again in 1977. Only 
the First Draft Additional Protocol, relating to international armed 
conflict, is relevant to the subject matter of this volume and only a 
very few articles thereof will have any impact on the law applicable 
to the treatment of prisoners of war. Where the committee decisions 
reached on those articles through the 1976 session were reached 
either by consensus or, where votes were taken, by close to unanimity, 
it has been assumed that they will be included in the Protocol that 
will presumably be adopted by the 1977 session of the Diplomatic 
Conference. Appropriate references to the relevant actions of the 1974, 
1975, and 1976 sessions of the Diplomatic Conference will be found in 
the text and footnotes. 

For the convenience of the reader, the entire 1949 Geneva Conven- 
tion relative to the Protection of Prisoners of War is reproduced as 
Appendix A, beginning at p. 431. It was felt that in most cases it 
would only be confusing to the reader to specify the numbering of 
the articles used in the Stockholm and Working Drafts of the Con- 
vention when discussing the evolution of a provision. For those who 
desire to trace such evolution in detail, the changes in such number- 
ing from the 1929 Convention, to the draft presented by the ICRC 
to the 1948 Stockholm Conference, to the Working Draft (the text 
approved at Stockholm), to the Convention adopted by the 1949 Dip- 
lomatic Conference are easily found by reference to the "Index to 
Articles" located in Volume III of the Final Record of the Diplomatic 
Conference of Geneva of 19 %9 (at 217). 

I have already presented my views on various aspects of prisoner- 
of-war problems in a number of articles. I am indebted to the editors 
of the American Journal of International Law for permission to use 
"Prisoners of War and the Protecting Power," 55 AJ.I.L. 374 (1961) ; 
"Penal Sanctions for Maltreatment of Prisoners of War," 56 AJ.I.L. 
433 (1962) ; "The Employment of Prisoners of War," 57 AJ.I.L. 318 
(1963) ; and "International Law Aspects of Repatriation of Prisoners 
of War during Hostilities: a Reply," 67 AJ.I.L. 693 (1973) ; and to 
the editors of the Boston University Law Review for permission to 
use "Maltreatment of Prisoners of War in Vietnam," 48 B.L.JJ. Rev. 
323 (1968). Acknowledgment is also due to the Association of the 
Bar of the City of New York for permission to use relevant portions 
of "Some Major Inadequacies in the Existing Law Relating to the 
Protection of Individuals during Armed Conflict," which was the 
Working Paper for the XlVth Hammarskjold Forum, When Battle 
Rages, How Can Law Protect? (John Carey, ed.) 



I must express my appreciation for the assistance rendered to me 
by George J. Skupnik and John J. James, each of whom served as 
a research assistant during his senior year at the Saint Louis Uni- 
versity Law School, performing many arduous, and often uninterest- 
ing tasks ; Commander Leo J. Coughlin, Jr., JAGC, USN, Commander 
J. Ashley Roach, JAGC, USN, and Commander Dennis McCoy, JAGC, 
USN, successively, Head, International Law Division, Center for Con- 
tinuing Education, Naval War College, each of whom, as editors of the 
Blue Books, offered continuous encouragement, meanwhile extracting 
the manuscript from me chapter by chapter; Ms. Pamela Scholl and 
other secretaries in the Saint Louis University Law School who typed 
the first clean draft of each chapter from the dirty one produced 
by my own typewriter and pencil ; Mrs. Mildred Imondi, of the Naval 
War College, who produced the final, correlated draft of the text and 
footnotes ; Mrs. Vivian M. Hutchins who gave the manuscript its last 
thorough review; Waldemar A. Solf and Harry H. Almond, who read 
the manuscript in final form and gave valuable critical appraisals; 
and last, but certainly not least, my wife, who each night read quietly 
despite the clatter of my portable. I am also indebted to the Govern- 
ment of Pakistan, and particularly to then Ambassador Sultan 
Mohammad Khan and Minister S. I. Riza of the Pakistani Embassy 
in Washington, for the opportunity to view at first hand the 1973- 
1974 repatriation of Pakistani prisoners of war from India and to 
interview a representative group of repatriated prisoners of war, 
selected at random, concerning their treatment while in prisoner-of- 
war camps in India after the December 1971 armed conflict between 
those two countries. 

While this volume is published under the auspices of the United 
States Naval War College as part of its "Blue Book" series, it does 
not purport to state United States Government policy and it definitely 
does not have the imprimatur of the Department of Defense or of any 
of its component services. It is exclusively the opinion of the author 
as to what the law relating to prisoners of war is, what the practice 
of States has been and -may be expected to be with respect to this 
problem, and, in some instances, what it is believed that the law ought 
to be in the light of humanitarian considerations. 



Howard S. Levie 
St. Louis 
September 1976 



ADDENDUM TO THE PREFACE 

The fourth session of the Diplomatic Conference on the Reaffirma- 
tion and Development of International Humanitarian Law Applicable 
in Armed Conflicts adopted a Final Act at Geneva on 10 June 1977. 
While the final preparation and the signing of the text of the Protocol 
Relating to the Protection of the Victims of International Armed Con- 
flicts (Protocol I) as actually adopted at Geneva is not scheduled to 
take place until 12 December 1977, in the belief that the work of the 
Diplomatic Conference represents an important milestone in the law of 
international armed conflict and that many of the provisions adopted 
by it will under any circumstances one day be a part of the general 
international law of war, I have updated all references to the work of 
the Diplomatic Conference to include its final 1977 decisions. A caveat 
— as there is as yet no official text, I have been compelled to use an 
unofficial draft which may vary to some extent from the text actually 
signed. 

Howard S. Levie 
Newport 
July 1977 



XT 



TABLE OF CHAPTERS 



I. PRELIMINARY PROBLEMS 1 

II. THE REGIME OF THE PRISONER OF WAR 97 

III. THE EMPLOYMENT OF PRISONERS OF WAR 213 

IV. PROTECTIVE AGENCIES 255 

V. THE PUNISHMENT OF PRISONERS OF WAR 315 

VI. SANCTIONS FOR MALTREATMENT OF PRISONERS 

OF WAR 343 

VII. TERMINATION OF CAPTIVITY 395 

APPENDICES 

A. THE GENEVA CONVENTION RELATIVE TO THE 

TREATMENT OF PRISONERS OF WAR OF 

AUGUST 12, 1949 431 

B. LIST OF PARTIES TO THE 1949 GENEVA 

PRISONER-OF-WAR CONVENTION 507 

TABLE OF CONTENTS 

FOREWORD Ill 

PREFACE V 

TABLE OF CHAPTERS XIII 

TABLE OF CONTENTS XIII 

TABLE OF ABBREVIATIONS, ARTICLES, BOOKS, 

AND DOCUMENTS XIX 

TABLE OF STATUTES, DECREES, AND ORDERS LV 

TABLE OF TREATIES AND AGREEMENTS LVII 

TABLE OF CASES LXV 

CHAPTER I. PRELIMINARY PROBLEMS 

A. Introductory 1 

B. Historical 2 

C. Applicability 11 

D. Compliance 26 

E. Entitlement to Prisoner-of-War Status 34 

1. Members of the Armed Forces 36 

2. Members of Other Militias, etc 38 

a. Members of Other Militias, etc 38 

b. Including Those of Organized Resistance Movements 39 

c. Belonging to a Party to the Conflict 40 

d. Operating in or outside Their Own Territory 43 

e. The Four Conditions 44 

3. Members of Regular Armed Forces Who Profess 
Allegiance to a Government or an Authority 

Not Recognized by the Detaining Power 59 

4. Persons Who Accompany the Armed Forces 

without Actually Being Members Thereof 60 

5. Members of Crews, etc. 63 

XIII 



XIV 

6. Inhabitants of a Nonoccupied Territory 64 

7. Members of the Armed Forces of an Occupied Country 66 

8. Members of Belligerent Armed Forces in Neutral 

or Nonbelligerent Countries 68 

9. Medical Personnel and Chaplains 70 

10. Problems of General Import 74 

a. Nationality 74 

b. Deserters and Defectors 76 

c. Commandos 81 

d. Spies and Saboteurs 82 

c. Others 83 

11. Conclusions 84 

F. Some General Problems 84 

1. Agreements between Belligerents 84 

2. Disputes between Belligerents 86 

3. Prohibition against Renunciation of Rights 91 

4. Dissemination of and Instruction on the Convention 93 

CHAPTER II. THE REGIME OF THE PRISONER OF WAR 

A. Introductory 97 

B. From Battlefield to Prisoner-of-War Camp 98 

1. Evacuation from the Battlefield 98 

2. Transfer of Prisoners of War between Detaining Powers 104 

3. Interrogation of Prisoners of War 106 

4. Property in the Possession of the Prisoner of War 110 

5. Fingerprinting Prisoners of War 118 

C. Life in the Prisoner-of-War Camp 120 

1. Establishment of Prisoner-of-War Camps 120 

2. Quarters 124 

3. Food 126 

4. Clothing 130 

5. Hygiene and Medical Care 131 

6. Morale 137 

a. Religious Activities 138 

b. Intellectual, Educational, and Recreational Pursuits 139 

c. Physical Exercise and Sports 142 

d. Canteens 143 

7. Correspondence 145 

8. Official Information concerning Prisoners of War 153 

9. Relief Shipments 158 

10. Internal Discipline 163 

a. The Camp Commander 163 

b. Knowledge of and Availability of the Convention 165 

c. Regulations 167 

d. Rank 167 

11. Miscellaneous Protections 173 

a. Common Treatment 173 

b. Women Prisoners of War 178 

c. Civil Rights 180 

12. Transfers between Prisoner-of-War Camps 187 

13. Financial Resources 194 

a. Credits 195 

(1) Sums Taken on Capture 195 

(2) Advances of Pay 197 

(3) Working Pay 201 



XV 

(4) Amounts Derived from Other Sources 205 

b. Debits 206 

(1) Payments Made to the Prisoner of War 206 

(2) Payments Made on Behalf of the Prisoner of War 207 

(3) Sums Transferred at the Request of 

the Prisoner of War 207 

c. Administrative Procedures 209 

CHAPTER III. THE EMPLOYMENT OF PRISONERS OF WAR 

A. Introductory 213 

B. Historical 213 

C. Categories of Prisoners of War Who May Be Compelled 

to Work 218 

1. Physical fitness 218 

2. Rank 221 

3. Other Prisoners of War Exempted from Working 224 

D. Types of Work That Prisoners of War May Be Compelled 

to Perform 225 

1. Camp Administration, Installation, or Maintenance 228 

2. Agriculture 229 

3. Production or Extraction of Raw Materials 229 

4. Manufacturing Industries (except Metallurgical, 

Machinery, and Chemical) 230 

5. Public Works and Building Operations Which 

Have No Military Character or Purpose 232 

6. Transportation and Handling of Stores Which 

Are Not Military in Character or Purpose 235 

7. Commercial Business and Arts and Crafts 236 

8. Domestic Service 237 

9. Public Utility Services Having No Military 

Character or Purpose 237 

10. Limitations with Respect to Unhealthy, 

Dangerous, or Humiliating Work 238 

E. Conditions of Employment 240 

1. General Working Conditions 240 

2. Labor Detachments 244 

3. Working Hours, Holidays, and Vacations 247 

4. Compensation and Other Monetary Benefits 249 

5. Grievance Procedures 252 

6. Special Agreements 252 

F. Conclusions 253 

CHAPTER IV. PROTECTIVE AGENCIES 

A. Introductory 255 

B. The Protecting Power 255 

1. Historical 255 

2. The Modern Concept of the Protecting Power 262 

a. Designation 262 

b. Substitutes for Protecting Powers 269 

c. Personnel of the Protecting Power 275 

d. Functions of the Protecting Power 278 

(1) Powers and Duties 279 

(2) Liaison Functions 286 

(3) Miscellaneous Functions 288 

(4) Limitations on the Activities of Protecting Powers 289 



XVI 

3. Conclusions 292 

C. The Prisoners' Representative 293 

1. Historical 293 

2. Selection of the Prisoners' Representative 295 

3. Functions of the Prisoners' Representative 301 

D. The International Committee of the Red Cross 307 

1. Historical 307 

2. The Position of the ICRC in an International Armed Conflict 308 

3. Activities of the ICRC 309 

E. Other Impartial Humanitarian Organizations 312 

CHAPTER V. THE PUNISHMENT OF PRISONERS OF WAR 

A. Introductory 315 

B. Provisions of General Applicability 318 

1. Laws, Regulations, and Orders Applicable 318 

2. Miscellaneous Rules 321 

a. Decision as to the Nature of the Proceedings 321 

b. Double Jeopardy 321 

3. Limitations on Punishment 322 

C. Provisions Applicable to Disciplinary Sanctions 324 

1. Who May Impose Disciplinary Sanctions 324 

2. Procedure 324 

3. Prehearing Confinement 325 

4. Authorized Disciplinary Punishments 326 

a. Fines 326 

b. Discontinuance of Privileges in Excess of 

Those Specified in the Convention 327 

c. Fatigue Duties 327 

d. Confinement 327 

D. Provisions Applicable to Judicial Proceedings 330 

1. Laws, Regulations, and Orders Applicable 330 

2. Pretrial Procedures 331 

3. Courts 335 

4. Trial Procedure 336 

5. Sentencing 337 

6. Death Sentences 339 

7. Confinement 340 

E. Conclusions 342 

CHAPTER VI. PENAL SANCTIONS FOR MALTREATMENT 
OF PRISONERS OF WAR 

A. Introductory 343 

B. Substantive Offenses 352 

1. Wilful Killing 353 

2. Torture or Inhuman Treatment, Including 

Biological Experiments 355 

a. Inhuman Treatment 355 

b. Torture 357 

c. Biological Experiments 358 

3. Wilfully Causing Great Suffering or Serious 

Injury to Body or Health 360 

4. Compelling a Prisoner of War to Serve in 

the Forces of the Hostile Power 361 

5. Wilfully Depriving a Prisoner of War of the 



XVII 

Rights of Fair and Regular Trial Prescribed in 

This Convention 363 

6. Protection against 365 

a. Acts of Violence or Intimidation 365 

b. Insults and Public Curiosity 365 

c. Reprisals 366 

7. Other Offenses 369 

C. Procedural Provisions 370 

1. Undertaking to Enact Any Necessary Legislation 371 

2. Undertaking to Suppress Other Violations 374 

3. Undertaking to Search for and to Extradite or Try 

Accused Persons 375 

4. Judicial Safeguards 379 

D. Miscellaneous Problems 383 

1. Type of Court 383 

2. Time of Trial 384 

3. Status of the Accused 386 

4. The Defense of Superior Orders 387 

5. Command Responsibility 390 

6. Permissible Punishments 391 

E. Conclusions 393 

CHAPTER VII. TERMINATION OF CAPTIVITY 

A. Introductory 395 

B. Types of Legal Termination of Prisoner-of-War Status 396 

1. Death 396 

2. Exchange 397 

3. Parole 398 

4. Escape 403 

5. Repatriation or Accommodation in a Neutral 

Country during the Course of Hostilities 407 

a. Wounded and Sick Prisoner of War 407 

(1) Repatriation 407 

(2) Accommodations in a Neutral Country 413 

b. Other Prisoners of War 416 

6. Repatriation After the Cessation of Active Hostilities 417 

APPENDIX A. The Geneva Convention relative to the Treatment 

of Prisoners of War of August 12, 1949 431 

APPENDIX B. List of Parties to the 1949 Geneva Convention relative 

to the Treatment of Prisoners of War 507 

INDEX 511 



TABLE OF ABBREVIATIONS, ARTICLES, 
BOOKS, AND DOCUMENTS 

(All articles, books, and documents cited by short titles are so listed, 
followed by the full title in parentheses, and the source. Institutional 
items are listed both under a short title, if any, and under the 
institution.) 

A.B.A.J. 

American Bar Association Journal 
Abell, Francis 

Prisoners of War in Britain, 1756-1815 (1914) 

Abi-Saab, Georges 

Le renforcement du systeme d'application des regies du droit hu- 
manitaire, XII/2 Revue de droit penal militaire et de droit de la 
guerre 223 (1973) 
Acheson, Dean 

Acheson, The Prisoner Question ("The Prisoner Question and Peace 
in Korea"), 27 Dept. State Bull. 744 (1952) 
AEI, Problem 

American Enterprise Institute for Public Policy Research, "The 
Prisoner of War Problem," Analysis No. 26, 28 December 1970. 
A.J.I.L. 

American Journal of International Law (1907-date) 
Algerian Office in New York 

White Paper on the Application of the Geneva Conventions of 1949 
to the French-Algerian Conflict (1960) 
al Ghunaimi, Mohammad T. 
See Ghunaimi 

American Enterprise Institute 
See AEI, Problem 

American Prisoners of War 

U.S. Army, "American Prisoners of War in Germany" (mimeo., 1 
November 1945) 
Ann. Dig. 

Annual Digest and Reports of Public International Law Cases, 
1919-49 (Title changed to International Law Reports in 1950) 
Annals 

The Annals of the American Academy of Political and Social Science 

XIX 



XX 

Anon. 

Anon., Conditions of Employment ("The Conditions of Employment 
of Prisoners of War : the Geneva Convention of 1929 and Its Ap- 
plication"), 47 Int. Labour Rev. 169 (1943) 

Anon., Employment in Canada ("The Employment of Prisoners of 
War in Canada"), 51 Int. Labour Rev. 335 (1945) 

Anon., Employment in Germany ("The Employment of Prisoners 
of War in Germany") , 48 Int. Labour Rev. 316 (1943) 

Anon., Employment in Great Britain ("The Employment of Pris- 
oners of War in Great Britain"), 49 Int. Labour Rev. 191 (1944) 

Anon., Misconduct ("Misconduct in the Prison Camp: a Survey of 
the Law and an Analysis of the Korean Cases"), 56 Col. L. Rev. 
709 (1956) 

Anon., POW in Russia (Prisoner of War Camps in Russia: the 
Account of a German Prisoner of War in Russia) (1951) 

Anon., "The Protection of Prisoners of War," 14 I.R.R.C. 191 
(1974) 

Anon., "Les represailles contres les prisonniers de guerre," 29 
R.I.C.R. 863 (1947) 

Anon., "A Treaty for the Regulation of War in 1820," 13 I.R.R.C. 
52 (1973) 
Ariga, Nagao 

Ariga, Guerre russo-japonaise (La Guerre Russo-J aponaise au point 
de vue Continental et le Droit International) (1908) 

Ball, Harry P. 

Ball, POW Negotiations ("Prisoner of War Negotiations: the Ko- 
rean Experience and Lesson"), N.W.C. Rev., September 1968, at 
54 
Barker, A. J. 

Behind Barbed Wire (1974) 
Basdevant, Jules 

Deux conventions peu connues sur le droit de la guerre, 21 
R.G.D.I.P. 5 (1914) [reprinted in part in English in 14 I.R.R.C. 
334 (1974)] 
1972 Basic Texts 

ICRC, Documentary material submitted by the International Com- 
mittee of the Red Cross to the Conference of Government Experts 
on the Reaffirmation and Development of International Humani- 
tarian Law Applicable in Armed Conflicts, 2d sess., Geneva, May- 
June 1972 (1972) 
Bastid, Suzanne 

Droit des gens: le droit des crises internationales (1958) 
Baxter, Richard R. 
Baxter, Asylum ("Asylum to Prisoners of War"), 30 B.Y.I.L. 489 
(1953) 



XXI 

Book review, 50 A.J.LL. 979 (1956) 

'The Cambridge Conference on the Revision of the Law of War," 

47 AJ.I.L. 702 (1953) 
Baxter, Codification ("The First Modern Codification of the Law 

of War"), 3 I.R.R.C. 171 (1963) 
Baxter, Compliance ("Forces for Compliance with the Law of 

War"), 1964 Proc. A.S.I. L. 82 
Baxter, Constitutional Forms ("Constitutional Forms and Some 

Legal Problems of International Military Command") , 29 B.Y.I.L. 

325 (1952) 
Baxter, Geneva Convention ("The Geneva Conventions of 1949), 

8 N.W.C. Rev., January 1956, at 59 
"The Geneva Conventions of 1949 before the United States Senate," 

49 AJ.I.L. 550 (1955) 
"Perspective: the Evolving Laws of Armed Conflicts," 60 Mil. L. 

Rev. 99 (1973) 
Baxter, Qualifications ("The Privy Council on the Qualifications of 

Belligerents"), 63 AJ.I.L. 290 (1969) 
Baxter, Unprivileged Billigerency ("So-called 'Unprivileged Bel- 
ligerency': Spies, Guerrillas and Saboteurs"), 28 B.Y.I.L. 323 
(1951) [reprinted in Mil. L. Rev. Bicentennial Issue 487 (1976) ] 

Bean, James E. 

"A Guest at the Hanoi Hilton," The Retired Officer, July 1973, at 28 

Bedjaoui, Mohammed 

Law and the Algerian Revolution (1961) 
Belfield, Sir Herbert E. 

Belfield, Treatment ("The Treatment of Prisoners of War"), 9 
Trans. 131 (1924) 

Benjamin, Milton 

"Tension Rising in Indian POW Camps," The Washington Post, 23 
December 1972, at 16A, cols. 1-4 
Bergamini, David 

Japan's Imperial Conspiracy (1971) 
Berman, Harold J. (and Kerner, Miroslav) 

Soviet Military Law and Administration (1955) 
Bethell, Nicholas 

The Last Secret: the Delivery to Stalin of Over Two Millions Rus- 
sians by Britain and the United States (1974) 
Bevans, Charles I. (ed). 

Treaties and Other International Agreements of the United States 
of America 1776-1949 (1968-74) 
B.FS.P. 

British and Foreign State Papers, 1812-date (1834-date) 
Bindschedler 

Bindschedler-Robert, Denise, A Reconsideration of the Law of 



XXII 

Armed Conflicts, in Carnegie Endowment for International Peace, 
Report of the Conference on Contemporary Problems of the Law 
of Armed. Conflicts, Geneva: 15-20 September 1969 (1971) 

Blaustein, Albert P. (and Paust, Jordan J.) 

"On POW's and War Crimes," 120 Cong. Rec. 1779 (1974) 
Bluntschli, Johann C. 
Das moderne Kriegsrecht (Das moderne Kriegsrecht der civilisier- 

ten Staaten als Rechtsbuch dargestellt) (1866) 
Das moderne Volkerrccht (Das moderne Volkerrecht der civilisier- 
ten Staaten als Rechtsbuch dargestellt) (1868) (he Droit Inter- 
national Codifie, transl. from German into French by Lardy, 1869) 
Boatner, Haydon L. 

'The Lessons of Koje-do," Army, March 1972, at 34 
Bond, James E. 

Bond, Proposed Revisions ("Proposed Revisions in the Law of War 
Applicable to Internal Conflict") , 12 Santa Clara Law. 223 (1972) 

Bothe, Michael 

Le Droit de la Guerre et les Nations Unies (1967) 

Bower, Sir Graham J. 

"The Laws of War: Prisoners of War and Reprisals," 1 Trans. 15 
(1916) 
Brabner-Smith, J. W. 

"Legal Aspects of Treatment of Prisoners of War," Mil. Rev., Feb- 
ruary 1944, at 44 
Bretton, Philippe 

De quelques problemes du droit de la guerre dans le conflit indo- 
pakistanais, 18 Annuaire francais de droit international 201 
(1972) 
Brewer, Garry D. 

Brewer, Chieu Hoi ("Chieu Hoi: the Surrender Program in Viet- 
nam"), 18 Air Univ. Rev. September-October 1967, at 50 

British Army 

Laws and Usages of War on Land (rev. 1936) 
British Manual 

The Law of War on Land: being Part III of the Manual of Military 
Law (1958) 

Brockhaus, Andreas 

Brockhaus, The U.S.S.R. ("Sowjetunion und Genfer Kriegsge- 

fangen-Konvention von 1949"), Ost Europa Recht, October 1956, 

at 226 
Bull. JAG 

Bulletin of the Judge Advocate General of the Army (United 

States) 



XXIII 

B.Y.I.L. 

British Yearbook of International Laiv, 1920-date 
Byrnes, James F. 

"A Review of the Problem of Missing Prisoners of War," 29 Dept. 
State Bull. 898 (1953) 

Caffrey, Kate 

Out in the Midday Sun: Singapore 19J+1-U5 — the End of an Em- 
pire (1973) 
Calvocoressi, Peter (and Wint, Guy) 

Calvocoressi and Wint, Total War: the Story of World War II 
(1972) 
Carey, John 

UN Protection of Civil and Political Rights (1970) 
Carey, John (ed.) 

When Battle Rages, How Can Law Protect? (1971) (See Levie, 
Working Paper) 
Castren, Erik 

Castren, The Present Laiv of War and Neutrality (1954) 
Charmatz, Jan P. (and Wit, Harold M.) 

Charmatz & Wit, "Repatriation of Prisoners of War and the 1949 
Geneva Convention", 62 Yale L.J. 391 (1953) 
Charon, Ferdinand 

"De la condition du prisonnier de guerre francais en Allemagne au 
regard du droit prive" (These, Faculte de Droit, Universite de 
Paris, 1946) 
Charpentier, Andre 
1929 Convention ("La Convention de Geneve du 27 Juillet 1929 et le 
droit nouveau des prisonniers de Guerre") (These, Faculte de 
Droit, Universite de Rennes, 1936) 
Charriere, Guy (and Duquet, Paul) 

Traite theorique et pratique des prisonniers de guerre, deportes et 
travailleurs en Allemagne en droit francais (1946) 
Civilians Convention 

1949 Geneva Convention for the Protection of Civilian Persons in 
Time of War (q.v. in the Table of Treaties and Agreements) 
Clause, James D. 

Clause, Status ("The Status of Deserters under the 1949 Geneva 
Prisoner of War Convention"), 11 Mil L. Rev. 15 (1961) 
C.M.R. 

Court-Martial Reports (Court-Martial Reports: Holdings and De- 
cisions of the Judge Advocates General, Boards of Review and 
United States Court of Military Appeals, 1-40, 1951-69; There- 
after, Court-Martial Reports : Holdings and Decisions of the 
Courts of Military Review and United States Court of Miltary 
Appeals) 



XXIV 

Cohen, Jerome A. (ed.) 

China's Practice of International Law: Some Case Studies (1972) 
Cohen, Jerome A. (and Chiu, Hungdah) (eds.) 
People's China (People's China and International Law: a Docu- 
mentary Study) (2 v. 1974) 
Cohen, Jerome A. (and Leng, Shao-chuan) 

Cohen & Leng, Sino-Indian Dispute ("The Sino-Indian Dispute over 
the Internment and Detention of Chinese in India") in Cohen 
(ed.), China's Practice of International Laiv 268 (1972) 

1972 Commentary 

ICRC, Documentary material submitted by the International Com- 
mittee of the Red Cross to the Conference of Government Experts 
on the Reaffirmation and Development of International Humani- 
tarian Law Applicable in Armed Conflicts, 2d sess., Geneva, May- 
June 1972, v. II (2 v. 1972) 

1973 Commentary 

ICRC, Draft Additional Protocols to the Geneva Conventions of 
August 12, 1949: Commentary (1973) 
Commission on the Responsibility 

"Report of the Commission on the Responsibility of the Authors 
of the War and on Enforcement of Penalties," 14 A.J.I.L. 95 
(1920) ; 1 Friedman 842; UNWCC History 33 
Coursier, Henri 

"Lieber" (Francis Lieber et les lois de la guerre), 35 R.I.C.R. 377 
(1953) 
Creasy, Sir Edward S. 

Decisive Battles of the World (Great Classics ed., 1899) 

Dallin, Alexander 

Dallin, German Rule (German Rule in Russia 1941-1945: A study 
of Occupation Politics) (1957) 
Davidson, Eugene 

The Trial of the Germans (The Trial of the Germans: an account 
of the twenty-two defoidants before the International Military 
Tribunal at Nuremburg (1966) 
Davis, George B. 

Davis, Prisoner of War ("The Prisoner of War"), 7 A.J.I.L. 521 
(1913) 
de La Pradelle 

See La Pradelle, de 
Delessert, Christiane Shields 
Release and Repatriation of Prisoners of War at the End of Active 
Hostilities (1977) 
Deltenre, Marcel (ed.) 

Deltenre (Recneil general des lois et cofitumes de la guerre) 
(1943) 



XXV 

Dept. State Bull 

The [United States] Department of State Bulletin (1939-date) 
Dig. Op. JAG 

Digest of Opinions of the Judge Advocate General (United States) 
Dillon, Joseph V. 

Dillon, Genesis ('The Genesis of the 1949 Convention Relative to 
the Treatment of Prisoners of War"), 5 Miami L.Q. 40 (1950) 
Dinstein, Yoram 

Dinstein, Superior Orders (The Defence of u Obedience to Superior 
Orders" in International Law) (1965) 
1975 Diplomatic Conference 

Records of the Diplomatic Conference on the Reaffirmation and De- 
velopment of International Humanitarian Law Applicable in 
Armed Conflicts, February-April 1975 (1975) 
Diplomatic Conference Documents 

Documents issued by the Swiss Federal Political Department in 
connection with the [1949] Diplomatic Conference for the Estab- 
lishment of International Conventions for the Protection of War 
Victims, Nos. 1-12 (mimeo., 1949) 
Documentation Francaise 

Les prisonniers de guerre en France: La documentation francaise, 
Notes do cument aires et etudes, No. 659 (3 July 1947) 
Downey, William G., Jr. 
Downey, Captured Enemy Property ("Captured Enemy Property: 
Booty of War and Seized Enemy Property"), 44 A.J.I.L. 488 
(1950) 

1972 Draft Additional Protocol 

ICRC, Draft Additional Protocol to the Four Geneva Conventions of 
August 12, 1949 (printed in 1972 Basic Texts, q.v.) 

1973 Draft Additional Protocol 

ICRC, "Draft Protocol Additional to the Geneva Conventions of 
August 12, 1949, and Relating to the Protection of Victims of In- 
ternational Armed Conflicts" (1973) 
Draft Revised Conventions 

ICRC, Draft Revised or New Conventions for the Protection of War 
Victims (XVIIth International Red Cross Conference, Stockholm, 
1948) 
Draper, Gerald I.A.D. 

Draper, Human Rights ("Human Rights and the Law of War"), 12 
Va.J.Int.L. 326 (1972) 

Draper, Implementation ("Implementation of International Law in 
Armed Conflicts"), 48 Int. Aff. 46 (1972) 

Draper, People's Republic ("The People's Republic of China and the 
Red Cross"), in Cohen (ed.), China's Practice of International 
Law 344 (1972) 



XXVI 

Draper, Recueil ("The Geneva Conventions of 1949"), 114 Recueil 

59 (1965) 
Draper, Relationship ("The Relationship between the Human Rights 
Regime and the Law of Armed Conflicts"), 1 Israel Y.B. on Hu- 
man Rights 191 (1971) 
Dufour, J.-J. 

Dans les camps de represailles (1918) 
Dunant, Henri 

Un Souvenir de Solferino (1862) 
DuPayrat, Armand 

he prison nier de guerre dans la guerre continentale (1910) 

Eisenhower, D wight D. 

"Address at the Columbia University National Bicentennial Din- 
ner," Public Papers of the Presidents of the United States: 
Dwight D. Eisenhower — 1954, at 517, 521 (1960) 
Crusade in Europe (1948) 
Elman, Susan 

Elman, Prisoners of War ("Prisoners of War under the Geneva 
Convention"), 18 I.C.L.Q. 178 (1969) 
Epstein, Julius 

Operation Keelhaul: the Story of Forced Repatriation from 19 UU 
to the Present (1973) 
Ereksoussi, M. K. 

"The Koran and the Humanitarian Conventions," 2 I.R.R.C. 273 
(1962) 
Eroglu, Hamza 

Eroglu, La representation ("La representation internationale en 
vue de proteger les interets des belligerants') (These, Faculte de 
Droit, Universite de Neuchatel, 1949) 
Esgain, Albert J. (and Solf, Waldemar A.) 

Esgain & Solf ("The 1949 Geneva Convention Relative to the Treat- 
ment of Prisoners of War: Its Principles, Innovations, and De- 
ficiencies"), 41 N.C.L. Rev. 537 (1963), reprinted in Mil. L. Rev. 
Bicentennial Issue 303 (1976) 

Fairchild, Byron (and Grossman, Jonathan) 

Fairchild & Grossman The Army and Industrial Manpower (U.S. 
Dept. Army, United States Army in World War II: The War De- 
partment; The Army and Industrial Manpower) (v. 4, pt. 6, 1959) 

Falk, Stanley L. 

Falk, Bataan (Bataan: the March of Death) (1962) 

Fall, Bernard B. 

Fall, Indochina ("Communist POW Treatment in Indochina"), Mil 
Rev., December 1958, at 3 



XXVII 

Fargo, Ladislas 

Aftermath {Aftermath: Martin Bormann and the Fourth Reich) 
(1974) 
Fehling, Helmut M. 

One Great Prison: the Story behind Russia's Unreleased POW's 
(1951) 
Feilchenfeld, Ernst H. 

Prisoners of War (1948) 
Field, David Dudley 

Draft Outlines of an International Code (1872) 
Final Record 

Final Record of the Diplomatic Conference of Geneva of 19 U9 (4 v. 
n.d.) 

First Convention 

1949 Geneva Convention for the Amelioration of the Condition of 
the Wounded and Sick in Armed Forces in the Field (q.v. in the 
Table of Treaties and Agreements) 

First International Criminal Law Conference 

The Establishment of an International Criminal Court (1971) 

Fleck, Dieter 

"The Employment of Legal Advisers and Teachers of Law in the 
Armed Forces," 13 I.R.R.C. 173 (1973) 
Flory, Maurice 

Flory, Nouvelle conception ("Vers une nouvelle conception du pris- 
onnier de guerre?"), 58 R.G.D.I.P. 53 (1954) 
Flory, William E. S. 
Flory, Prisoners of War (Prisoners of War: a Study in the Devel- 
opment of International Laiv) (1942) 

Fooks, Herbert C. 

Prisoners of War (1924) 

Ford, W. J. 

Ford, Resistance Movements ("Resistance Movements in Occupied 
Territory"), 3 Netherlands Int. L. Rev. 355 (1956) 
For. Rel. 

Foreign Relations of the United States (1861-date) 
Forsythe, David P. 

"The 1974 Diplomatic Conference on Humanitarian Law : Some Ob- 
servations," 69 A.J.I.L. 77 (1975) 
Forsythe, Who Guards the Guardians ("Who Guards the Guardians : 
Third Parties and the Law of Armed Conflict"), 70 A.J.I.L. 41 
(1976) 

Fourth Convention 

1949 Geneva Convention for the Protection of Civilian Persons in 
Time of War (q.v. in the Table of Treaties and Agreements) 



XXVIII 

Franklin, William M. 

Franklin, Protection (Protection of Foreign Interests: a Study in 
Diplomatic and Consular Practice) (1947) 
Freeman, Alwyn V. 

Freeman, Recueil ("Responsibility of States for Unlawful Acts of 
their Armed Forces"), 88 Recueil 264 (1955) 
Friedman, Leon (ed.) 

Friedman {The Law of War: a Documentary History) (2 v. 1972) 

Gallinger, August 

The Countercharge: the Matter of War Criminals from the German 
Side (1922) 
Gansberg, Judith 

Stalag: USA (1977) 
Garcia-Mora, Manuel R. 

Garcia-Mora, Asylum (International Law and Asylum as a Human 
Right) (1956 J 
Garthoff, Raymond L. 

Garthoff, Soviet Military Doctrine (1953) 

Garthoff, Soviet Military Policy (Soviet Military Policy: a Histori- 
cal Analysis) (1966) 
Gass, James D. 

"Can the POW Convention Be Enforced?" 27 JAG J. 248 (1973) 
1971 GE Documentation 

ICRC, Documentation submitted by the International Committee of 
the Red Cross to the Conference of Government Experts on the 
Reaffirmation and Development of International Humanitarian 
Law Applicable in Armed Conflicts, 1st sess., Geneva, May-June 
1971 (8 v. 1971) 
1956 GE Record 

CICR, Reunion d'Experts consultes sur la question de la repression 
des infractions aux Conventions de Geneve, Geneve, 8/12 Octobre 
1956 (Doc. No. D 459) (mimeo., 1956; pagination is separate for 
each meeting) 
1947 GE Report 

ICRC, Report on the Work of the Conference of Government Ex- 
perts for the Study of the Conventions for the Protection of War 
Victims (Geneva, 14-26 April 1947) (1947) 
1956 GE Report 

ICRC, Report of the Experts Convened by the International Com- 
mittee of the Red Cross to Examine the Question of the Drafting 
of a Model Law for the Repression of Breaches of the Geneva 
Conventions of 12 August 19U9 [October 1956] (Doc. No. D4656 
bis, mimeo., 1956) 
1971 GE Report 

ICRC, Report on the Work of the Conference of Government Ex- 



XXIX 

perts on the Reaffirmation and Development of International Hu- 
manitarian Law Applicable in Armed Conflicts, 1st sess., 2U May- 
12 June 1971 (1971) 

1972 GE Report 

ICRC, Report on the Work of the Conference of Government Ex- 
perts on the Reaffirmation and Development of International Hu- 
manitarian Law Applicable in Armed Conflicts, 2d sess., 3 May-3 
June 1972 (2 v. 1972) 

German Regulations 

Regulations Pertaining to Prisoners of War: Translation of a Col- 
lection of Orders Issued by the Supreme Command of the Wehr- 
macht from 16 June 1941 to 15 January 1945 (Prepared in the 
Office of The Provost Marshal General of the United States Army, 
mimeo., December 1945) 
al Ghunaimi, Mohammad T. 

The Muslim Conception of International Law and the Western Ap- 
proach (1968) 
Ginsburgs, George 

Ginsburgs, Refugees ('The Soviet Union and the Problem of Refu- 
gees and Displaced Persons, 1917-1956"), 51 AJ.LL. 325 (1957) 

Girard-Claudon, Pierre 

"Les prisonniers de guerre en face de 1'evolution de la guerre" 
(These, Faculte de Droit, Universite de Dijon, 1955) 

Glod, Stanley J. (and Smith, Lawrence J.) 

Glod & Smith, Interrogation ("Interrogation under the 1949 Pris- 
oners of War Convention"), 21 Mil. L. Rev. 145 (1963) 

Grady, Robert F. 
Grady, Evolution ("The Evolution of Ethical and Legal Concern 
for the Prisoner of War") (Dissertation, Graduate School of The- 
ology, The Catholic University of America, 1970) 
Grases, Pedro 

"A Treaty on the Regulation of War in 1820," Tricolor No. 215, 
November-December 1970, reprinted in 13 I.R.R.C. 52 (1973) 
Gray, Edwyn A. 

The Killing Time: the U-Boat War 1914-18 (1972) 
Green, L. C. 

Superior Orders (Superior Orders in National and International 
Law) (1976) 
Greenspan, Morris 

Greenspan, International Law ("International Law and Its Protec- 
tion for Participants in Unconventioal Warfare"), 341 Annals 30 
(1962) 
Greenspan, Modern Law (The Modern Law of Land Warfare) 
(1959) 



XXX 

Grotius, Hugo 

Grotius, War and Peace (De Jure Belli ac Pacts Libri Tres) (1625) 
(Kelsey transl. 1925) 

Gumpert, Martin 

Dunant — the Stonj of the Red Cross (1938) 

Gutteridge, Joyce A. C. 

"The Geneva Conventions of 1949," 26 B.Y.I.L. 294 (1949) 
Gutteridge, Repatriation ('The Repatriation of Prisoners of War") , 
2 I.C.L.Q. 207 (1952) 

Hackworth, Green H. , 

Hackworth, Digest (Digest of International Law) (8 v., 1943) 

Haight, Gardiner M. 

Haight, Shadow War ("The Geneva Conventions in the Shadow 
War"), U.S. Naval Inst. Proc, September 1968, at 43 
Harrison, Gordon A. 

Harrison, Cross-Channel Attack (U.S. Dept. Army, United States 
Army in World War II: The European Theater of Operations: 
Cross-Channel Attack) (v. 3, pt. 2, 1951) 

Harvey, Alton H. 

Harvey, Control ("The Maintenance of Control over Prisoners of 
War"), II/l Revue de droit penal militaire et de droit de la guerre 
127 (1963) 
Hauser, J. 

"L'internement en Suisse des prisonniers de guerre malades ou 
blesses, 1916-1919," 23 R.I.C.R. 513 (1941) 
Havens, Charles W., Ill 

"Release and Repatriation of Vietnam Prisoners," 57 A. B.A.J. 41 
(1971) 
1955 Hearing 

Geneva Conventions for the Protection of War Victims. Hearing 
on Executives D, E, F, and G, 82d Cong., 1st sess., before the 
Senate Committee on Foreign Relations, 84th Congress, 1st sess. 
(1955) 

1971 Hearings 
American Prisoners of War in Southeast Asia, 1971. Hearings 
before the Subcommittee on National Security Policy and Scien- 
tific Developments of the House Committee on Foreign Affairs, 
92d Congress, 1st sess., pt. 1, at 479 (1971) 

Heckenroth, Andre 

Heckenroth, Puissances protectrices ("Les puissances protectrices 
et la convention de Geneve: contribution a l'etude de la neutrality 
active") (These, Faculte de Droit d'Aix, Universite d' Aix-Mar- 
seille, 1951) 



XXXI 

Hefele, Karl J. 

Histoire des Conciles ("Histoire des conciles de l'Eglise de'apres les 
Documents originaux" [LeClercq transl., 1913] ) 
Hermes, Walter G. 

Hermes, Truce Tent (U.S. Dept. Army, United States Army in the 
Korean War: Truce Tent and Fighting Front) (1966) 

Hess, Frederick W. 

Hess, Post-Korea ("A Post-Korea Look at the Geneva Convention") , 
Mil. Rev., December 1955, at 52 
Hingorani, R. C. 

Prisoners of War (1963) 

Hooker, Wade S., Jr. (and Savasten, David H.) 

"The Geneva Convention of 1949: Application in the Vietnamese 
Conflict," 5 Va. J. Intl. L. 243 (1965) 
Hoole, W. Stanley (ed.) 

Hoole, And Still We Conquer (And Still We Conquer! The Diary 
of a Nazi Unteroffizier in the German Afrika Corps Who Was Cap- 
tured by the United States Army, 9 May 19 US, and Imprisoned at 
Camp Shelby, Mississippi) (1968) 
Howard, Michael 

The Franco-Prussian War: the German Invasion of France, 1870- 
1871 (1961) 
Hyde, Charles C. 

Hyde, International Laiv (International Law Chiefly as Interpreted 
and Applied by the United States) (3 v., 2d rev. ed. 1945) 

I.C.J. Rev. 

Review of the International Commission of Jurists 
I.C.L.Q. 

International and Comparative Law Quarterly (see I.L.Q.) 

ICRC (see also International Committee of the Red Cross) 

ICRC, Analysis (The Geneva Conventions of August 12, 19 U9: Anal- 
ysis for the use of National Red Cross Societies) (1950) 

ICRC Annual Report (International Committee of the Red Cross: 
Annual Report) 

ICRC, Con flit de Coree (Le comite international de la Croix-Rouge 
et le con flit de Coree: Recueil de Documents) (2v. 1952) 

ICRC, Information Notes (International Committee of the Red Cross, 
Information Notes 1-5, Replies of the International Committee of 
the Red Cross to requests for information on the Geneva Conven- 
tions or problems connected therewith, Doc. Nos. D 219b, D 
219b/2, D 219/3b, D 219/4 (in French) & D 219/5b (1952-54) 

ICRC, 'The International Committee and the Vietnam Conflict," 6 
I.R.R.C. 399 (1966) 



XXXII 

ICRC, Model Agreement ("La retention et la releve du personnel 
sanitaire et religieux — Accords-types"), 37 R.I.C.R. 7 (1955) 

ICRC, "Proposed System of Standard Telegram Messages to and 
from Prisoners of War" (Report submitted by the International 
Committee of the Red Cross to the XXIst International Confer- 
ence of the Red Cross, Istanbul, 1969, Doc. No. D.S. 3/2) 

ICRC Report (Report of the International Committee of the Red 
Cross on its Activities during the Second World War) (3 v. 1948) 
Ikle, Fred C. 

"After Detection — What?" 39 For. Aff. 208 (1961) 
I.L.A. Rep. 

Biennial Report of the International Law Association 

ILC (International Law Commission) 
ILC Draft Code ("Draft Code of Offences against the Peace and 
Security of Mankind"), [1951] 2 Y.B. Int. L Com. 134, U.N. 
Doc. A/CN.4/SER.A/1951/Add 1 (1957) 
ILC, Niirnberg Principles ("Formulation of the Niirnberg Prin- 
ciples"), [1950] 2 Y.B. Int. L. Com. 374, U.N. Doc. A/CN.4/ 
SER.A/1950/Add. 1 (1957) 
I.L.M. 

International Legal Materials 
I.L.Q. 

International Laiv Quarterly (1947-51) (Title changed to Interna- 
tional and Comparative Law Quarterly (I.C.L.Q.) in 1952) 

I.L.R. 

International Law Reports (See Ann. Dig.) 

1965 Implementation 

ICRC, Implementation and Dissemination of the Geneva Conven- 
tions. Report submitted by the International Committee of the 
Red Cross to the XXth International Conference of the Red Cross, 
Vienna, October 1965 (Doc. Conf. D 3/1, 1965) 

1969 Implementation 

ICRC, Implementation and Dissemination of the Geneva Conven- 
tions. Report submitted by the International Committee of the 
Red Cross to the XXIst International Conference of the Red 
Cross, Istanbul, 1969 (Doc. No. D.S. 3/1, 2 v., 1969) 

1973 Implementation 
ICRC, Implementation and Dissemination of the Geneva Conven- 
tions. Report Submitted by the International Committee of the 
Red Cross to the XXI Ind International Conference of the Red 
Cross, Teheran, 1973 (Doc. Conf. No. D.H. 3, 3 2, and 3/3, 1973) 

I.M.T. 

International Military Tribunal (see I.M.T. in the Table of Cases) 



XXXIII 

I.M.T.F.E. 

International Military Tribunal for the Far East (see I.M.T.F.E. 
in the Table of Cases) 

Inglis, Brian 

Roger Casement (1973) 

Institute of Law 

Academy of Sciences of the U.S.S.R., International Law (c. 1960) 

International Committee of the Red Cross (ICRC) 
(in chronological order of occurrence) 
See ICRC Report 
See 1946 Preliminary Conference 
See 1947 SAIN 
See 1947 GE Report 
See Draft Revised Conventions 
See Report of the XVIIth Convention 
See Revised Draft Conventions 
See Remarks and Proposals 
See ICRC, Analysis 
See ICRC, Conflit de Coree 

See Pictet (ed.), Commentary on the First Convention 
See ICRC Information Notes 
See ICRC Model Agreement 
See 1956 GE Record 
See 1956 GE Report 
See Pictet (ed.), Commentary 
See 1965 Implementation 
See 1965 Measures to Repress 

See ICRC, 'The International Committee and the Vietnam Conflict" 
See 1969 Implementation 
See 1969 Measures to Repress 
See 1969 Reaffirmation 

See ICRC, "Proposed System of Standard Telegram Messages" 
See 1971 GE Documentation 
See 1971 GE Report 
See 1972 Basic Texts 
See 1972 Draft Additional Protocol 
See 1972 Commentary 
See 1972 GE Report 
See 1973 Draft Additional Protocol 
See 1973 Commentary 
See 1973 Implementation 
See ICRC Annual Report 
See I.R.R.C. 
See R.I.C.R. 



XXXIV 

International Law Association 

"Proposed International Regulations for the Treatment of Prisoners 
of War," 30 LL.A. Rep. 236 (1921) 
I.R.R.C. 

International Review of the Red Cross (1960-date) 
Israel, Fred L. (ed.) 

Israel (Major Peace Treaties of Modern History 1648-1967) (4 v., 
1967) 
Israeli Ministry for Foreign Affairs 

Defenceless ("Defenceless : Three Complaints by the Government of 
Israel [to the ICRC] Respecting Grave Violations of the 1949 
Geneva Prisoners-of-War Convention") (Middle East Informa- 
tion Series, 1973) 

JAGA 

Manuscript Opinions of the Judge Advocate General of the Army 
(United States) 
JAGW 

See JAGA 
Janner, Antonino 

La Puissance protectrice en droit international d'apres les experi- 
ences faites par la Suisse pendant la seconde guerre mondiale 
(Monney, transl., 1948) 
Jones, J. Mervyn 

"Status of the Home Guard in International Law," 57 Law Q. Rev. 
212 (1941) 
J.R.U.S.I. 

Journal of the Royal United Service Institution 
Juridical Sciences Institute 

U.S. War Crimes in Viet Nam (1968) 

Kalshoven, Frits 

Belligerent Reprisals (1971) 
Kantor, MacKinlay 

Andersonville (1955) 
Keen, M. H. 

The Laws of War in the Late Middle Ages (1965) 
Kelly, Joseph B. 

"PW's as War Criminals," Mil Rev., January 1972, at 91 
Khadduri, Majid 

War and Peace in the Law of Islam (1955) 
Kisch, Guido 

"War-Prisoner Money and Medals," 58 The Numismatist 452 (1945) 
Kleut, Petar 

"Guerre de partisans et droit internationale," 3 Jugoslovenska 
Revija za Medunarodno Pravo 94 (1956) 



XXXV 

Knitel, Hans G. 

Les Delegations du Comite International de la Croix-Rouge (1967) 
Krafft, Agenor 

"The Present Position of the Red Cross Geneva Conventions," 37 
Trans. 131 (1952) 
Kulski, W. W. 

Kulski, Some Soviet Comments ("Some Soviet Comments on Inter- 
national Law"), 45 AJ.I.L. 347 (1951) 
Kunz, Josef L. 

Kunz, Chaotic Status ("The Chaotic Status of the Laws of War and 
the Urgent Necessity for Their Revision"), 45 AJ.I.L. 37 (1951) 
Kunz, Treatment ("Treatment of Prisoners of War"), 1953 Proc. 
A.S.I.L. 99 
Kutner, Luis 

Kutner, World Habeas Corpus ("International Due Process for 
Prisoners of War: the Need for a Special Tribunal of World 
Habeas Corpus") , 21 U. Miami L. Rev. 721 (1967) 

La Pradelle, Paul de 

La Pradelle, de, Le controle ("Le controle de l'application des con- 
ventions humanitaires en cas de conflit arme"), 2 Annuaire fran- 
cais de droit international 343 (1956) 
La Pradelle, de, Nouvelles conventions (La conference diplomatique 
et les nouvelles conventions de Geneve du 12 aout 191*9) (1951) 
Laska, Lewis L. (and Smith, James M.) 

Laska & Smith, " 'Hell and the Devil' : Andersonville and the Trial 
of Captain Henry Wirz, C.S.A., 1865," 68 Mil. L. Rev. 11 (1975) 
Lauterpacht, Hersch 

"The Law of Nations and the Punishment of War Crimes," 21 

B.Y.I.L. 58 (1944) 
Lauterpacht, Problem ("The Problem of the Revision of the Law 

of War"), 29 B.Y.I.L. 360 (1952) 
Lauterpacht-Oppenheim (International Law) , (7th ed. 1952) 
Law of Land Warfare 

U.S. Army, Field Manual 27-10, The Laiv of Land Warfare (1956) 
Laws, M. E. S. 

Laws, Exchange ("The Exchange of Prisoners of War"), 98 

J.R. U.S.I. 603 (1953) 
Laws, Prisoners of War ("Prisoners of War"), 95 J.R.U.S.I. 91 
(1950) (digested in Mil. Rev., October 1950, at 96) 
Levie, Howard S. 

Levie, Armistice Agreement ("The Nature and Scope of the Armi- 
stice Agreement"), 50 AJ.I.L. 880 (1956) 
"The Employment of Prisoners of War," 57 AJ.I.L. 318 (1963) 
Levie, Indo-Pakistani Agreement ("The Indo-Pakistani Agreement 
of August 28, 1973"), 68 AJ.I.L. 95 (1974) 



XXXVI 

Levie, Maltreatment in Vietnam ("Maltreatment of Prisoners of 

War in Vietnam"), 48 Boston U. L. Rev. 323 (1968), reprinted in 

2 Falk (ed.), The Vietnam War and International Law 361 

(1969) 

"Penal Sanctions for Maltreatment of Prisoners of War," 56 

AJ.I.L. 433 (1962) 
"Prisoners of War and the Protecting Power," 55 AJ.I.L. 374 

(1961) 
Levie, Repatriation ("International Law Aspects of Repatriation of 
Prisoners of War during Hostilities: a Reply"), 67 A.J.I L. 693 
(1973), reprinted in 4 Falk (ed.), The Vietnam War and Inter- 
national Law 340 (1976) 
Levie, "Weapons of Warfare," in Trooboff (ed.), Law and Respon- 
sibility in Warfare 153 (1975) 
Levie, Working Paper ("Working Paper for the Fourteenth Ham- 
marskjold Forum"), in Carey (ed.), When Battle Rages, Hoiv 
Can Law Protect? 1 (1971) 
Lewis, George G. (and Mewha, John) 

Lewis & Mewha (History of Prisoner of War Utilization by the 
United States Army, 1776-1945) (Dept. Army Pamphlet No. 20- 
213, 1955) 
Lewis, Michael A. 

Lewis, Napoleon (Napoleon and His British Captives) (1962) 
Liddell Hart, B. H. 

History of the Second World War (1970) 
Lieber, Francis 

Lieber Code (United States Army, General Orders No. 100, 24 April 
1863, Instructions for the Government of the Armies of the United 
States in the Field), 3 NWC 115; 35 R.I.C.R. 401, 476, 635, 974 
(1953) ; 1 Friedman 158; Schindler & Toman 3 
Lindsay, Samuel M. (ed.) 

Lindsay, Siviss Internment (Swiss Internment of Prisoners of War) 
(1917) 
L.N.T.S. 

League of Nations Treaty Series (199 v. 1920-40) 
Long, Gavin M. 

The Final Campaigns (Australia in the War of 1939-1945, Series 
1 (Army), Vol. VII: The Final Campaigns) (1963) 
L. Q. Rev. 

Law Quarterly Review (1884-date) 
LRTWC 

United Nations War Crimes Commission, Law Reports of Trials of 
War Criminals (15 v. 1947-1949) 
Lubrano-Lavadera, Capitaine 

Lubrano (Les lois de la guerre et V occupation militaire) (1956) 



XXXVII 

Lundin, Carl E. Jr. 

Lundin, Repatriation (''Repatriation of Prisoners of War : the Legal 
and Political Aspects"), 39 A.B.A.J. 559 (1953) 
Lyons, William P. 
Lyons, Code of Conduct ("Prisoners of War and the Code of Con- 
duct"), N.W.C. Rev., December 1967, at 60 

McCarthy, Daniel J. 

McCarthy, Prisoner of War {The Prisoner of War in Germany: the 
Care and Treatment of the Prisoner of War) (1917) 
McDougal, Myres S. (and Reisman, Michael) 

"Working Document Establishing a Convention for World Writ of 
Habeas Corpus and Regional Courts of World Habeas Corpus" 
(mimeo., 1975) 

McKnight, Maxwell S. 

McKnight, POW Employment ("The Employment of Prisoners of 
War in the United States"), 50 Int. Labour Rev. 47 (1944) 
McNair, Sir Arnold D. 

International Law Opinions (1956) 

McNair, Legal Effects (McNair & Watts, The Legal Effects of War) 
(4th ed. 1966) 

MACV 

See United States Military Assistance Command, Vietnam (MACV) 

Mahmud, Syed 

Muslim Conduct of State (1973) 
Malloy, William M. (comp.) 

Treaties, Conventions, International Acts, Protocols and Agreements 
between the United States of America and other Powers, 1776- 
1937 (4 v. 1910-38) 
Manes, Donald L. Jr. 

Manes, Barbed Wire Command ("Barbed Wire Command: the 
Legal Nature of the Command Responsibilities of the Senior Pris- 
oner in a Prisoner of War Camp"), 10 Mil. L. Rev. 1 (1960) 

Manual for Courts-Martial 

Manual for Courts -Martial, United States 1969 (rev. ed.) 
Marin, Miguel A. 

Marin, Recueil ("The Evolution and Present Status of the Laws of 
War"), 92 Recueil 633 (1957) 
Martin, Paul E. 

Martin, Note ("Note sur les prisonniers de guerre evades sur le 
territoire d'une Puissance neutre"), 26 R.IC.R. 62 (1944) 
Mason, John B. 

Mason, German Prisoners of War ("German Prisoners of War in 
the United States"), 39 A.J.I.L. 198 (1945) 



XXXVIII 

Mason, W. Wynne 

Mason, Prisoners of War (Prisoners of War: Official History of 
New Zealand in the Second World War 1939-45) (1954) 

Maughan, Barton 

Maughan, Tobruk (Tobruk and El Alamein: Australia in the War 
of 1939-1945, Ser. 1, v. Ill) (1966) 
Mayda, Jaro 

"The Korean Repatriation Problem and International Law," 47 
AJ.I.L. 414 (1953) 

1965 Measures to Repress 

ICRC, Respect of the Geneva Conventions: Measures taken to Re- 
press Violations. Report submitted by the International Commit- 
tee of the Red Cross to the XXth International Conference of the 
Red Cross, Vienna, October 1965 (Doc. Conf. D 4a/l, 1965) 

1969 Measures to Repress 

ICRC, Respect of the Geneva Conventions: Measures taken to Re- 
press Violations,' v. 2. Report submitted by the International 
Committee of the Red Cross to the XX 1st International Confer- 
ence of the Red Cross, Istanbul, September 1969 (Doc. No. D.S. 
3/3, 1969) 

Meitani, Radu 

Meitani, Regime (Le regime des prisonniers de guerre) . (pts. 1-3) 
7 Revue international francaise du droit des gens 281 ; 8 ibid., 
26, 190 (1939) 
Meyers, Samuel M. (and Bradbury, William C.) 

Meyers & Bradbury, Political Behavior ("The Political Behavior of 
Korean and Chinese Prisoners of War in the Korean Conflict: a 
Historical Analysis"), in Bradbury, Meyers & Biderman, Mass 
Behavior in Battle and Captivity: the Communist Soldier in the 
Korean War 209 (1968) 
Meyrowitz, Henri 

Les armes biologiques et le droit international (1968) 
Miller, Hunter (ed.) 

Treaties and Other International Acts of the United States of Ameri- 
ca (8 v. 1931-48) 
Miller, Richard I. (ed.) 

The Law of War (1975) 
Mojonny, Gerard L. 

"The Labor of Prisoners of War under the Geneva Convention" 
(LL.M. Thesis, Graduate School, University of Indiana, 1954) 
Moltke, Helmuth K. B., von 

The Franco-German War of 1870-1871 (Bell-Fischer trans., 1892) 

Montaudon, Andre 

Montaudon, Des internes ("Des internes en pays neutre dans la 



XXXIX 

guerre continentale") (These, Faculte de Droit, Universite de 
Paris, 1916) 
Morgan, John H. (transl.) 

The German War Book: Being "The Usages of War on Land" Issued 
by the Great General Staff of the German Army (1915) 
Morison, Samuel E. (ed.) 

History of United States Naval Operations in World War II: Leyte 
June 19M-January 1945 (v. 12, 1958) 
Mullins, Claud 
The Leipzig Trials: an Account of the War Criminals Trials and a 
Study of German Mentality (1921) 
Murphy, Charles H. 

Murphy, Repatriation ("Prisoners of War: Repatriation or Intern- 
ment in Wartime — American and Allied Experience, 1775 to 
Present"), Library of Congress (1971), printed in part in 1971 
Hearings, pt. 1, at 479. 

NATO 

North Atlantic Treaty Organization (see ST AN AG) 
Naughton, Robert J. 

Naughton, Motivational Factors ("Motivational Factors of Ameri- 
can Prisoners of War held by the Democratic Republic of Viet- 
nam"), N.W.C. Rev., January/February 1975, at 2 
1973 NGO Memorandum 

Memorandum by Non-Governmental Organisations on the Two 
Draft Additional Protocols to the Geneva Conventions, 1949 
(mimeo., 1973) 

Nordic Experts 

"Interpretation of the Geneva Conventions of 1949 : Some statements 
adopted by experts from the Nordic Countries" (1951), printed 
in French as "Interpretation des Conventions de Geneve de 1949 : 
Declarations adoptees par les experts des pays scandinaves," 57 
R.G.D.I.P. 165 (1953) 
Nuremberg Trial 

International Military Tribunal (see I.M.T. in the Table of Cases) 
Niirnberg Principles 

ILC Niirnberg Principles ("Formulation of the Niirnberg Princi- 
ples") [1950] 2 Y.B. Int. L. Comn. 374, U.N. Doc. A/CN.4/ 
SER.A/1950/Add. 1 (1957) 
NWC 

United States Naval War College 

International Law Topics and Discussions, 1903, 1905-06, 1909, 

1914-16 
International Law Situations 1901-02, 1904, 1907-08, 1910-12, 
1926-39 



XL 

International Law Documents, 1917-25, 1940-53 
International Law Studies, 1954-66 
N.W.C. Rev. 

[United States] Naval War College Review (1948-date) 

Official Records 

U.S. War Department, The War of the Rebellion: a Compilation of 
the Official Records of the Union and Confederate Armies (130 
v. 1880-1901) 
Olgiati, Rodolfo 

Olgiati, Croix-Rouge ("La Croix-Rouge en temps de guerre et en 
temps de paix"), 36 R.LC.R. 705 (1954) 
Olson, Eugene T. 

Olson, Soviet Policy ("Prisoner of War Policy of the Soviet Union") 
(ms, 1953) 
Overly, Norris M. 

"Held Captive in Hanoi — An Ex-POW Tells How It Was," Air 
Force & Space Digest, November 1970, at 86 
Oxford Manual (1880) 

Institute of International Law, "Manual on the Laws of War," 5 
Annuaire de VInstitut de Droit International 157 (1881-82) ; Del- 
tenre 635 ; Schindler & Toman 35 

Paquin, Jean 

Paquin, Le probleme des sanctions disciplinaires ("Le probleme des 
sanctions disciplinaires et penales dans la Hie Convention de 
Geneve du 12 aout 1949"), 29 Revue de droit international de 
sciences diplomatiques et politiques 52 (1951) 
Parry, Clive (ed.) 

Parry (The Consolidated Treaty Series 1648- ) (1969-date) 
Perrot, Premier Lieutenant de 

"L'internement en Suisse (1940-1941)," 23 R.LC.R. 132 (1941) 
Phillimore, George G. 

Phillimore, Suggestions ("Some Suggestions for a Draft Code for 
the Treatment of Prisoners of War"), 6 Trans. 25 (1921) 
Phillimore, George G. (and Bellot, Hugh H. L.) 

Phillimore & Bellot ("Treatment of Prisoners of War"), 5 Trans. 
47 (1920) 
Phillipson, Coleman 

The International Law and Custom of Ancient Greece and Rome 
(2 v. 1911) 
Pictet, Jean S. 

Pictet, Humanitarian Law (Humanitarian Law and the Protection 

of War Victims) (1975) 
Pictet, New Geneva Conventions ("The New Geneva Conventions 
for the Protection of War Victims"), 45 AJ.I.L. 462 (1951) 



XLI 

Pictet, Recueil ("La Croix-Rouge et les Conventions de Geneve"), 
76 Recueil 5 (1950) 

Pictet, Jean S. (ed.) 

Pictet, Commentary (Commentary on the III Geneva Convention 
Relative to the Treatment of Prisoners of War) (1960) 

Pictet, Commentary on the First Convention (Commentary on the 
I Geneva Convention for the Amelioration of the Condition of the 
Wounded and Sick in Armed Forces in the Field) (1952) 

Pilloud, Claude 

" 'Captured Enemy Property'" (" 'Captured Enemy Property: 

Booty of War and Seized Enemy Property'"), 32 R.I.C.R. 829 

(1950) 
"Protection of Journalists on Dangerous Missions in Areas of Armed 

Conflict," 11 I.R.R.C. 3 (1971) 
Pilloud, Protection penale (La protection penale des Conventions 

humanitaires internationales), 35 R.I.C.R. 842 (1953) 
Pilloud, Reservations (Les reserves aux Conventions de Geneve de 

1949), 39 R.I.C.R. 409 (1957) (reprinted in English in (pts. 1- 

3), 11 R.I.C.R. Supp. 138, 151, 193 (1958) ) 
Pilloud, "Reservations to the Geneva Conventions of 1949," (pts. 

1-2) 16 I.R.R.C. 107, 163 (1976) 
Pilloud, Sanctions penales ("Les sanctions penales dans la premiere 

Convention de Geneve (blesses et malades), du 12 aout 1949"), 

M R.I.C.R. 286 (1952) 

Pinto, Roger 

"Hanoi et la Convention de Geneve," Le Monde, 27 December 1969, 
at 2, col. 1 
PMG Review 

United States Army, Office of The Provost Marshal General, "A 
Review of United States Policy on Treatment of Prisoners of 
War" (mimeo. 1968) 
POW Circular No. 1 

United States War Department. Prisoner of War Circular No. 1: 
Regulations Governing Prisoners of War (1943) 
Pradelle, de La 

See La Pradelle, de 
1946 Preliminary Conference 

ICRC, Report on the Work of the Preliminary Conference of Na- 
tional Red Cross Societies for the study of the Conventions and of 
various Problems relative to the Red Cross, Geneva, July 26 — 
August 3, 19If6 (Ser. I, No. 3a, 1947) 
Preux, Jean de 

Preux, Homme de confiance ("L'homme de confiance des prisonniers 
de guerre"), 35 R.I.C.R. 449 (1953) 



XLII 

"Le probleme de la capacite civile des prisonniers de guerre et des 
internes civils dans les Conventions de Geneve de 1949," 35 
R.I.C.R. 925 (1953) (with Henri Coursier) 

Prisoner-of-War Convention 

1949 Geneva Convention relative to the Treatment of Prisoners of 
War (q.v. in the Table of Treaties and Agreements) 
Proc. A.S.I.L. 

Proceedings of the American Society of International Law, 1907- 
date (1908-date) 
Prugh, George S. Jr. 

Prugh, Code of Conduct ("The Code of Conduct for the Armed 

Forces"), 56 Col. L. Rev. 678 (1956) 
Prugh, Current Initiatives ("Current Initiatives to Reaffirm and 
Develop International Humanitarian Law Applicable in Armed 
Conflict"), 8 Int. Law. 262 (1974) 
Prugh, Law at War (Law at War: Vietnam, 1964-1973) (1975) 

Ramundo, Bernard A. 

Ramundo, Soviet Criminal Legislation ("Soviet Criminal Legislation 
in Implementation of the Hague and Geneva Conventions Relating 
to the Rules of Land Warfare"), 57 AJ.I.L. 73 (1963) 
Rasmussen, Gustav 

Codes des prisonniers de guerre (1931) 
1969 Reaffirmation 

ICRC, Reaffirmation and Development of the Laws and Customs 
Applicable in Armed Conflicts. Report submitted by the Interna- 
tional Committee of the Red Cross to the XXIst International 
Conference of the Red Cross, Istanbul, 1969 (1969) 

Recueil 

Recueil des Cours de VAcademie de Droit International de la Haye, 
1923-date (1925-date) 

Red Cross 

See International Committee of the Red Cross 

Reid, Patrick R. 

The Colditz Story (1952) 
Men of Colditz (1953) 

Reiners, Wilfred 0. 
Reiners, Soviet Indoctrination ("Soviet Indoctrination of German 
War Prisoners, 1941-1956") (mimeo. 1959) 

Remarks and Proposals 

ICRC, Remarks and Proposals submitted by the International Com- 
mittee of the Red Cross: Document for the Consideration of Gov- 
ernments Invited by the Siviss Federal Council to Attend the Dip 
lomatic Conference at Geneva, April 21, 19 U9 (1949) 



XLIII 

1975 Report of Committee I 

Report of Committee I of the Diplomatic Conference on the Reaffir- 
mation and Development of International Humanitarian Law 
Applicable in Armed Conflicts, 2d sess., February-April 1975 
(1975) Doc. No. CDDH/219/Rev. 1 

Report of the Investigation into the My Lai Incident 

U.S. Dept. Army, Report of the Department of the Army Review 
of the Preliminary Investigation into the My Lai Incident (the 
"Peers Report") (14 March 1970), reprinted in The My Lai 
Massacre and Its Cover-up (J. Goldstein, B. Marshall & J. 
Schawartz eds.) (1976) 

Report of the XVIIth Conference 

ICRC, Report of the XVIIth International Red Cross Conference, 
Stockholm, August 19 US (1952) 

Revised Draft Conventions 

ICRC, Revised and New Draft Conventions for the Protection of 
War Victims: Texts Approved and Amended by the XVIIth In- 
ternational Red Cross Conference (1948) 
R.G.D.LP. 

Revue generale de droit international public (1894-date) 

Rich, Bennett M. (ed.) 

Rich, Brief History ("A Brief History of the Office of The Provost 
Marshal General, World War II") (mimeo. 1946) 

Richardson, Walton K. 

"Prisoners of War as Instruments of Foreign Policy," N.W.C. Rev., 
September 1970, at 47 

R.I.C.R. 

Revue internationale de la Croix-Rouge (1919-date) 

Risley, John S. 

The Law of War (1897) 

Rockwell, Jeffrey E. 

Rockwell, Right of Nonrepatriation ("The Right of Nonrepatriation 
of Prisoners of War Captured by the United States"), 83 Yale 
LJ. 358 (1973) 

Roling, Bernard V. A. 

Roling, Recueil ("The Law of War and the National Jurisdiction 
since 1945"), 100 Recueil 329 (1960) 

Rosas, Allan 

The Legal Status of Prisoners of War (1976) 

Rosenberg, Curt H. 

"International Law concerning Accidents to War Prisoners Em- 
ployed in Private Enterprises," 36 AJ.I.L. 294 (1942) 



XLIV 

Rousseau, Charles 

Droit international public (1953) 

Roxburgh, Ronald F. 

The Prisoner of War Information Bureau in London (1915) 

Rubin, Alfred P. 

Rubin, Status of Rebels ("The Status of Rebels under the Geneva 
Conventions of 1949"), 21 1.C.L.Q. 472 (1972) 

Rubli, Jean-Maurice 

Rubli, Repatriation ("Repatriation and Accommodation in Neutral 
Countries of Wounded and Sick Prisoners of War"), 5 I.R.R.C. 
623 (1965) 

Rules of Land Warfare 

United States Army, Basic Field Manual 27-10, Rules of Land War- 
fare (1940) 

Rundell, Walter, Jr. 

Rundell, Paying the POW ("Paying the POW in World War IF'), 
22 Mil Aff. 121 (1958) 

Sack, Alexander N. 

"Punishment of War Criminals and the Defence of Superior Orders," 
60 Law Q. Rev. 63 (1944) 

1947 SAIN 

ICRC, Report on the Work of the Commission appointed for the 
Study of Treaty Stipulations Relative to the Spiritual and Intel- 
lectual Needs of Prisoners of War and Civilian Internees, March 
1947 (1947) 

Sauser-Hall, Georges 

Sauser-Hall, Des belligerants internes (Des belligerants internes 
chez les neutres en-cas de guerre terrestre") (These, Faculte de 
Droit, Universite de Geneve) (1910) 

Savant, Renaud 

"Le droit des prisonniers de guerre" (These, Faculte de Droit, Uni- 
versite de Paris) (1943) 

Schacht, Kenneth G. 

Schacht Statement (Japanese Atrocities: Statement of Lieutenant 
Kenneth George Schacht, USN, U.S.S. Perch, 12 September 
1945. (Commander Submarine Force, Pacific Fleet, Administra- 
tion, World War II Command File, Operational Archives, U.S. 
Naval History Division, Naval Historical Center, Washington, 
D.C., 21 September 1945) 



XLV 

Schapiro, L. B. 

Schapiro, Repatriation ("The Repatriation of Deserters"), 29 
B Y.I.L. 310 (1952) 
Schein, Edgar H. 

Schein, Patterns ("Patterns of Reactions to Severe Chronic Stress 
in American Army Prisoners of War of the Chinese"), in Group 
for the Advancement of Psychiatry, Methods of Forceful Indoc- 
trination: Observations and Interviews, Symposium No. 4, July 
1957, at 253 
Schindler, Dietrich (and Toman, Jiri) 

Schindler & Toman (The Laws of Armed Conflicts) (1973) 
Schlesinger, Thomas 0. 

"Obligations of the Prisoner of War," Mil. Rev., December 1970, at 
80 
Schwarzenberger, Georg 

Schwarzenberger, Human Rights ("Human Rights and Guerrilla 
Warfare"), 1 Israel Y.B. on Human Rights 246 (1971) 
Scott, James B. (ed.) 

Scott, Reports (The Reports to the Hague Conferences of 1899 and 

1907) (1917) 
Scott, Resolutions (Resolutions of the Institute of International Law 
Dealing with the Law of Nations) (1916) 
SEASTAG No. 2033 

South-East Asia Treaty Organization, Standardization Agreement 
No. 2033, "Interrogation of Captured or Otherwise Detained Per- 
sonnel (CDP)." 
Second Convention 

1949 Geneva Convention for the Amelioration of the Condition of 
Wounded, Sick and Shipwrecked Members of Armed Forces at 
Sea (q.v. in the Table of Treaties and Agreements) 
Seitz, Jean 

Seitz, La Suisse ("La Suisse puissance protectrice"), 24 Revue de 
droit international de sciences diplomatiques et politiques 34 
(1946) 
Seminar 

"Seminar on the Teaching of Humanitarian Law to the Armed 
Forces," 13 I.R.R.C. 42 (1973) 
1955 Senate Report 

Senate Committee on Foreign Relations, Geneva Conventions for 
the Protection of War Victims, Executive Report No. 9 on Execu- 
tives D, E, F, and G, 82d Cong., 1st ses. (1955) 
Sereni, Angelo P. 

Sereni, Statut juridique ("Le statut juridique des prisonniers de 
guerre italiens aux Etats-Unis" ) , 67-72 Journal du droit inter- 
national 52 (1940-45) 



XLVI 

Seyersted, Finn 

Seyersted, United Nations Forces (United Nations Forces in the 
Law of Peace and War) (1966) 
Shub, Boris 

The Choice (1950) 
Simmonds, R. 

Simmonds, Legal Problems (Legal Problems Arising from the 
United Nations Military Operations in the Congo) (1968) 
Siordet, Frederic 

Siordet, Scrutiny ("The Geneva Conventions of 1949: the Question 
of Scrutiny") (1953 English reprint of "Les Conventions de 
Geneve de 1949: le probleme du controle," (pts. 1-3), 33 R.LC.R. 
695 (1951), 34 R.I.C.R. 92, 869 (1952)) 
SIPRI 

See Stockholm International Peace Research Institute 
Smith, Delbert D. 

Smith, Appraisal ("The Geneva Prisoner of War Convention: an 
Appraisal"), 42 N.Y.U.L. Rev. 880 (1967) 
Smith, Elizabeth R. Jr. 

Smith, Code of Conduct ("The Code of Conduct in Relation to In- 
ternational Law"), 31 Mil L. Rev. 85 (1966) 
Soviet Academy of Sciences 

See Institute of Law 
Soviet International Law 

See Institute of law 
Spaight, J. M. 

Spaight, Air Power (Air Power and War Rights) (3rd ed. 1947) 
War Rights on Land (1911) 
SPJGT 

See JAGA 
SPJGW 

See JAGA 
Stacey, C. P. 

Six Years of War: the Army in Canada, Britain and the Pacific 
(1 Official History of the Canadian Army in the Second World 
War, rev. ed. 1966) 
STANAG No. 2044 

NATO Standardization Agreement No. 2044 (Ed. No. 3), "Proce- 
dures for dealing with Prisoners of War," 4 August 1967 
Standard Minimum Rules 

"Standard Minimum Rules for the Treatment of Prisoners," Report 
of the First United Nations Congress on the Prevention of Crimes 
and the Treatment of Offenders, Geneva, 22 Augusts September 
1955, U.N. Doc. A/CONF.6/I, at 67 (1956) (reprinted in I.C.J. 
Rev., December 1969, at 48) 



XLVII 

Stat. 

United States Statutes at Large 

Stockholm International Peace Research Institute 

SIPRI (The Laiv of War and Dubious Weapons) (1976) 
Yearbook of World Armaments and Disarmament, 196S/1969 
(1969) 

Stone, Julius 

Stone, Legal Controls (Legal Controls of International Conflict) 
2d impression, rev. 1959) 

Stone, Julius (and Woetzel, Robert K.) (eds.) 

Toivard a Feasible International Criminal Court (1970) 

Stuart, Graham H. 

"Special War Problems Division," 11 Dep. State Bull. 63 (1944) 

Suckow, Samuel 

"The Development of International Humanitarian Law: a Case 
Study," I.C.J. Rev., June 1974, at 50 

Sullivan, William H. 

Sullivan, Prisoners of War in Indochina ("Department Discusses 
Problem of U.S. Prisoners of War and Missing in Action in Indo- 
china"), 66 Dept. State Bull. 304 (1972) 

Swiss Federal Department 

See Switzerland 
Swiss Manual 

Armee Suisse, Manuel des lois et coutumes de la guerre (No. SI. 7/ 
llf, ed. 1963) 

Switzerland 

See Diplomatic Conference Documents 
See Final Record 
See 1975 Diplomatic Conference 
See 1975 Report of Committee I 
See Siviss Manual 

Takahashi, Sakuye 

Takahashi, Russo-Japanese War (International Law Applied to the 
Russo-Japanese War) (1908) 

Taracouzio, Timothy A. 

The Soviet Union and International Law (1935) 

Taylor, Telford 

"The Nuremberg War Crimes Trials," 1949 International Concilia- 
tion 243 (No. 450, April 1949) 



LXVIII 

Maelzer, Trial of: 11 LRTWC 53; 13 Ann. Dig. 289 (U.S. Military 
Commission 1946). 

Masao, Trial of: 11 LRTWC 56; 14 Ann. Dig. 205 (Austrialian Mili- 
tary Court 1947). 

Masuda, Trial of: see the Jaluit Atoll Case 

Medical Case (U.S. v. Brandt) : 1 TWC 1, 2 TWC 171; 14 Ann. Dig. 
296 (U.S. Military Tribunal 1947). 

Meyer, Trial of: see the Abbaye Ardenne Case 

Milch Case (Trial of Milch) : 2 TWC 353, 773 ; 7 LRTWC 27 ; 14 Ann. 
Dig. 299 (U.S. Military Tribunal 1947). 

Ministries Case (U.S. v. von Weizsaecker) : 12 TWC 1, 14 TWC 308; 
16 Ann. Dig. 344 (U.S. Military Tribunal 1949). 

Nisuke, Trial of: see the Jaluit Atoll Case 

Ohlendorf, U.S. v.: see the Einsatzgruppen Case 

Pal Dissent: International Tribunal for the Far East, Dissent of Judge 
Pal (India) ; reprinted in part in 2 Friedman 1159. 

Perzenowski, Rex v.: [1947] 1 D.L.R. 705; [1946] 3 Can. Crim. Cases 
254; 13 Ann. Dig. 300 (Alberta Supreme Court, App. Div. 1946). 

Quirin, Ex parte: 317 U.S. 1 (1942) 

Reservations to the Convention on Genocide, Advisory Opinion on: 
[1951] I.C.J. Reports 1. 

Sawada, Trial of: see Shigeru, Trial of 

Schindler, Rex v.: [1944] 3 W.W.R. 125; 82 Can. Crim. Cases 206; 12 
Ann. Dig. 403 (Alberta Police Court 1944). 

Schmidt, Trial of: 12 LRTWC 119 (quoted only) (British Military 
Tribunal 1947). 

Shigeru, Trial of: 5 LRTWC 1 ; 13 Ann. Dig. 302 (U.S. Military Com- 
mission 1946). 

Siebers, In re: 17 I.L.R. 399 (Dutch Special Court of Cassation 1949). 

Stalag Luft III Case (In re Wielen) : 11 LRTWC 31 ; 13 Ann. Dig. 292 
(British Military Court 1947). 

Student, In re: 4 LRTWC 118; 13 Ann. Dig. 296 (British Military 
Court 1946). 

Tanabe, Trial of: 11 LRTWC 1 ; 14 Ann. Dig. 210 (Netherlands Tem- 
porary Court Martial 1947). 

Tanaka, Chuichi, Trial of: 11 LRTWC 62; 13 Ann. Dig. 289 (Aus- 
tralian Military Court 1946). 

Tanaka, Hisakasu, Trial of: 5 LRTWC 66 (U.S. Military Commission 
1946). 

Tassoli, Re: 23 I.L.R. 764; 39 Rivista di Diritto wternazionale 595 
(Italian Court of Cassation, United Chambers 1956). 

Territo, In re: 156 F.2d 142, 13 Ann. Dig. 284 (9th Cir. 1946). 



XLIX 

TW.C. 

Trials of War Criminals before the Nuernberg Military Tribunals 
under Control Council Law No. 10 (19^6-49) 

U.K., Treatment 

United Kingdom, Ministry of Defence, Treatment of British Pris- 
oners of War in Korea (1955) 
United Kingdom 

See British Army 

See British Manual 

Foreign Office, Korea No. 1 (1953) (Korea: a Summary of Further 
Developments in the Military Situation, Armistice Negotiations 
and Prisoner of War Camps up to January 1953) , Cmd. 8793 

Foreign Office, The Treatment of Prisoners of War in England and 
Germany during the First Eight Months of the War (1915) 

House of Commons, Report of the Committee of the House of Com- 
mons Relative to the Treatment of Prisoners of War (1798) 

See U.K., Treatment 
U.N. (United Nations) 

G.A. Res. 382A, 1 December 1950, Threats to the political independ- 
ence and territorial integrity of Greece, 5 U.N. GAOR, Supp. 20, 
at 14, U.N. Doc. A/1775 (1950) 

G.A. Res. 427, 14 December 1950, Measures for the peaceful solu- 
tion of the problems of prisoners of war [World War II], 5 U.N. 
GAOR, Supp. 20, at 45, U.N. Doc. A/1775 (1950) 

G.A. Res. 610, 3 December 1952, Repatriation of prisoners, of war 
(Korea), 7 U.N. GAOR, Supp. 20, at 3, U.N. Doc. A/2361 (1952) 

G.A. Res. 2312, 14 December 1967, Declaration on territorial asy- 
lum, 22 U.N. GAOR, Supp. 16, at 81, U.N. Doc. A/6716 (1967) 

G.A. Res. 2444, 19 December 1968, Respect for human rights in 
armed conflicts, 23 U.N. GAOR, Supp. 18, at 50, U.N. Doc. A/7218 
(1969) 

G.A. Res. 2676, 9 December 1970, Respect for human rights in armed 
conflicts, 25 U.N. GAOR, Supp. 28, at 77, U.N. Doc. A/8028 
(1971) 

G.A. Res. 3058, 2 November 1973, Prootection of journalists engaged 
in dangerous missions in areas of armed conflict, 28 U.N. GAOR, 
Supp. 30, at 73, U.N. Doc. A/9030 (1974) 

S.C. Res. 307, 21 December 1971, Resolution of the Security Council 
with Respect to the India-Pakistan Hostilities, 26 SCOR, Resolu- 
tions and Decisions of the Security Council 1971 at 11, U.N. Doc. 
S/INF/27 (1972) 

See Standard Minimum Rules 

See UNEF 

See UNFICYP 

See U.N., Human Rights 



See U.N.T.S. 
U.N., Human Rights 

U.N., Human Rights, A/7720 : Respect for Human Rights in Armed 
Conflicts, [First] Report of the Secretary-General, U.N. Doc. 
A/7720, 20 November 1969 

U.N., Human Rights, A/8052 : Respect for Human Rights in Armed 
Conflicts, [Second] Report of the Secretary-General, U.N. Doc. 
A/8052, 18 September 1970 

U.N., Human Rights, A/8178 : Respect for Human Rights in Armed 
Conflicts, Report of the Third Committee, 25 U.N. GAOR, 1 An- 
nexes, Agenda Item No. 47, at 1, U.N. Doc. A/8178 (1970) 

U.N., Human Rights, A/8313 : Respect for Human Rights in Armed 
Conflicts, Comments by Government on the Reports of the Secre- 
tary-General, U.N. Doc. A/8313, 15 June 1971 

U.N., Human Rights, A/8370 : Respect for Human Rights in Armed 
Conflicts, [Third] Report of the Secretary-General, U.N. Doc. 
A/8370, 2 September 1971 

U.N., Human Rights, A/8781 : Respect for Human Rights in Armed 
Conflicts, [Fourth] Report of the Secretary-General U.N. Doc. 
A/8781, 20 September 1972 

U.N., Human Rights, A/9123 : Respect for Human Rights in Armed 
Conflict, [Fifth] Report of the Secretary-General, U.N. Doc. 
A/9123, 19 September 1973 

UNC (United Nations Command) 

UNC, "Articles Governing United Nations [sic] Prisoners of War," 
23 October 1951 (mimeo.) 

UNC, "Communist War" (United Nations and Far East Command, 
Military Intelligence Section, "The Communist War in POW 
Camps: the Background of Incidents among Communist Pris- 
oners in Korea" (mimeo. 1953. Summarized in 28 Dept. State 
Bull 273 (1953)) 

UNC, "Regulations Governing the Penal Confinement of Prisoners 
of War," 20 October 1951 (mimeo.) 

UNC, "Rules of Criminal Procedure for Military Commissions of the 
United Nations Command," 22 October 1950 (mimeo.) 

UNC, "Supplemental Rules of Criminal Procedure for Military 
Commissions of the United Nations Command," 6 October 1951 
(mimeo.) 
UNEF 

Regulations for the United Nations Emergency Force, February 20, 
1957, U.N. Doc. ST/SGB/UNEF/1 (1957), annexed to Note by 
the Secretary-General, U.N. Doc. A/3552, reprinted in 1 Higgins, 
United Nations Peacekeeping 19^6-1967: Documents and Com- 
mentary 288 (1969) and Lauterpacht, The United Nations Emer- 
gency Force: Basic Documents 34 (1960) 



LI 

UNFICYP 

United Nations Forces in Cyprus : UNFICYP Regulations, 25 April 
1964, reprinted in Seyersted, United Nations Forces 437 

Uniform Code 

Uniform Code of Military Justice [for the Government of the Armed 
Forces of the United States], 10 U.S.C. §§ 801-940 (1970) 

United Nations War Crimes Commission 
See UNWCC 

U.N.T.S. 

United Nations Treaty Series, 1946-date 

UNWCC 

Law Reports of Trials of War Criminals (see LRTWC) 
UNWCC, History (History of the United Nations War Crimes Com- 
mission and the Development of the Laws of War) (1948) 

U.S. Army 

See American Prisoners of War 

See Bull. JAG 

See Dig. Op. JAG 

FM 19-40, Enemy Prisoners of War, Civilian Internees and De- 
tained Persons (1976) 

See German Regulations 

See JAGA 

See JAGW 

See Law of Land Warfare 

See Lewis & Mewha 

Lieber Code (See Lieber, Francis) 

See PMG Revieiv 

See POW Circular No. 1 

Regs. 633-50 (U.S. Army Regulations 633-50, Prisoners of War: 
Administration, Employment, and Compensation) (1963) 

See Rich, Brief History 

See Rules of Land Warfare 

See SPJGT 

See SPJGW 

See U.S., Communist Interrogation 

See U.S. DA Pam. 27-161-2 

See U.S. Manual 

See U.S., MP Board 

See Vietnam, Article-by -Article Revieiv 

See Winthrop, William 

U.S.C. 

United States Code 



LII 

U.S.C.M.A. 

Decisions of the United States Court of Military Appeals (1951- 
date) 
U.S., Communist Interrogation 

DA Pam. No. 30-101, Communist Interrogation, Indoctrination, 
and Exploitation of Prisoners of War (1956) 
U.S. Congress 

Hearings on H.R. 2208, Amending the Missing Persons Act to Pro- 
vide Benefits to Certain Members of the Philippine Scouts before 
Subcomm. No. 1 of the House Comm. on Armed Services, 84th 
Cong., 2d sess., No. 105 (1956) 

Korean War Atrocities; Hearing before the Subcomm. on Korean 
War Atrocities of the Permanent Subcomm. on Investigations of 
the Senate Comm. on Government Operations pursuant to S. Res 
UO, 83rd Cong., 1st sess. (1954) 

See Malloy, William M. 

See 1955 Hearing 

See 1955 Senate Report 

See 1971 Hearings 

See Stat. 
U.S. DA Pam. 27-161-2 

International Law (1962) 
U.S. Department of Defense 

See C.M.R. 

Directive No. 5100.77, 5 November 1974, "DOD Program for the 
Implementation of the Law of War" 

See Manual for Courts-Martial 

See U.S., POW 
U.S. Department of State 

See Acheson, Dean 

See Bevans, Charles I. (ed.) 

See Byrnes, James F. 

See Dept. State Bull. 

See For. Rel. U.S. 

Legal Considerations Underlying the Position of the United Nations 
Command Regarding the Issue of Forced Repatriation of Prison- 
ers of War (mimeo. 1952) 

See Stuart, Graham H. 

See Sullivan, William H. 
U.S. Manual 

U.S. Army, FM 27-10, The Law of Land Warfare (1956) 

U.S. Military Assistance Command, Vietnam (MACV) 

Directive No. 20-5, 15 March 1968, "Inspections and Investigations: 
Prisoners of War — Determination of Eligibility" (reproduced in 
part at 62 A././.L. 768) (1968) 



LIII 

Directive No. 190-6, 22 September 1970, "Military Police: ICRC 
Inspections of Detainee/Prisoner of War Facilities" 

Directive No. 381-46, 27 December 1967, "Military Intelligence: 
Combined Screening of Detainees ; Annex A, Criteria for Classi- 
fication and Disposition of Detainees" (reproduced in part at 62 
AJ.I.L. 766 (1968) ; 12 Wm. & Mary L. Rev. 798 n.23 (1971) ; 
and 12 Santa Clara Law. 236 n.53 (1972) 
U.S., MP Board 

"Collection and Documentation of Materials Relating to the Prisoner 
of War Internment Program in Korea" (ms., 1953) 

U.S., POW 

"POW : the Fight Continues after the Battle." The Report of the 
Secretary of Defense's Advisory Committee on Prisoners of War 
(1955) 
U.S.T. 

United States Treaties and Other International Agreements, 1950- 
date, (1952-date) 

U.S. War Department 

Circular No. 353, 31 August 1944, reprinted in 44 AJ.I.L. 500 

(1950) 
Lieber's Code (see Lieber, Francis) 
See Official Records 
See Rules of Land Warfare 
Technical Manual TM 19-500, Enemy Prisoners of War (1944) 

Vattel, Emmerich de 

The Law of Nations (The Law of Nations or the Principles of Nat- 
ural Law) (Fenwick transl. 1916 of the 1758 edition) 
Vetter, Hal 

Vetter, Mutiny (Mutiny on Koje Island) (1965) 

Vietnam, Article-by -Article Review 

U.S. Army, Article -by -Article Review of the Application of the 
Geneva Prisoner -of -War Convention by the Republic of Vietnam 
(c. December 1970) 
Vizzard, William R., Jr. 
Vizzard, Policy ("Prisoner of War Policy in Relation to Changing 
Concepts of War") (Ph.D thesis, University of California, 1961) 
Von der Porten, Edward P. 

The German Navy in World War II (1969) 

von Moltke 

See Moltke, Helmuth K. B., von 

Walzer, Michael 

Walzer, Prisoners of War (Prisoners of War: Does the Fight Con- 
tinue after the Battle?"), 63 Amer. Pol. Sci. Rev. Ill (1969) 



LIV 

Watson, Liselotte B. 

"Status of Medical and Religious Personnel in International Law," 
20 JAG J. 41 (1965) 
Weintraub, Stanley 

War in the Wards (1976) 
Werner, Auguste-Raynald 

Werner, Croix-Rouge ("Le Croix-Rouge et les Conventions de Ge- 
neve: Analyse et synthese juridiques") (1943) 
White Paper on the French-Algerian Conflict 

See Algerian Office in New York 
Whiting, Charles 

Massacre at Malmedy (1971) 
Wilhelm, Rene-Jean 

Wilhelm, Le caractere (Le caractere des droits accordes a l'individu 

dans les Conventions de Geneve), 32 R.IC.R. 561 (1950) 
Wilhelm, Status ("Can the Status of Prisoners of War Be Altered?") 
(1953 English reprint of "Peut-on modifier le statut des prison- 
niers de guerre?" (pts. 1-2), 35 R.I.C.R. 516, 681 (1953) ) 
Williams, Walter L., Jr. 

Intergovernmental Military Forces and World Public Order (1971) 
Wilson, Robert R. 

"Escaped Prisoners of War in Neutral Jurisdiction," 35 A.J.I.L. 
519 (1941) 
Winthrop, William 

Winthrop, Military Laiv (Military Law and Precedents) (1886 ; 2nd 
ed. rev. and enlarged 1920) 
Wosepka, James L. 

Wosepka, Chieu Hoi ("Repatriation and the Chieu Hoi Amnesty 
Approach in Vietnam : Consequences and Prospects"), 5 Int. Law. 
637 (1971) 

Yingling, Raymund T. (and Ginnane, Robert W.) 

Yingling & Ginnane ("The Geneva Conventions of 1949"), 46 
A.J.I.L. 393 (1952) 



TABLE OF STATUTES, DECREES, AND ORDERS 

France 

Decret imperial concernant les prisonniers de guerre et les otages, 

Bulletin des lots, decret n° 7130, annee 1811, fascicule 382, p. 95; 

reprinted in Bulletin Officiel du Minister e de la Guerre N° 110-0, 

Le droit des gens et les conventions internationales 263 (1955). 
Decret rendu par TAssemblee nationale le 4 mai 1792 concernant les 

militaires faits prisonniers de guerre, 1 DeClercq, Recueil des 

traites de la France 217 (1880) . 
Decret de l'Assemblee nationale du 16 septembre 1792 sur l'echange 

des prisonniers de guerre, 1 DeClercq, Recueil des traites de la 

France 219 (1880). 
Code penal francais: Dalloz (1972-73). 
Code de justice militaire francais, Armee de terre: Dalloz (1972-73) . 

Germany 

Military Penal Code, Article 47: 11 LRTWC 46. 

Netherlands 

Loi concernant le droit penal militaire: 1965 Measures to Repress 
115. 

U.S.S.R. 

Law on Criminal Responsibility for Military Crimes of December 
25, 1958 : in part in 3 Soviet Statutes and Decisions, No. 4, at 88 
(Summer 1967) ; 57 A.J.LL. 74 n. 7 (1963) 

United Kingdom 

Geneva Convention Act, 1957: 5 & 6 Eliz. 2, c. 52; 37 Halsbury's 
Stat. (2d ed.) 67; British Manual, Appendix XXVI; 1965 Meas- 
ures to Repress 149 ; 1971 GE Documentation, III, at 149. 

United States 

Code of Conduct for Members of the Armed Forces of the United 
States: Executive Order No. 10,631, 17 August 1955, 3 C.F.R. 266 
(1954-1958 Compilation), as amended by section 13 of Executive 
Order No. 11,382, 28 November 1967, 3 C.F.R. 691, 694 (1966- 
1970 Compilation), reprinted in 10 U.S.C. § 802 note (1970) ; and 
as amended by Executive Order No. 12017, 3 November 1977. 

Extradition Law: 18 U.S.C. § 3184 (1970). 

Prisoners of ivar or enemy aliens: 18 U.S.C. § 757 (1970). 

Renunciation of Certain Uses in War of Chemical Herbicides and 

LV 



LVI 

Riot Control Agents: Executive Order No. 11850, 8 April 1975, 
3A C.F.R. 149 ; 40 Fed. Reg. 16187 ; 14 I.L.M. 794. 

Trading with the Enemy Act: 50 U.S.C. App. §§ 1-44 (1970). 

JJCMJ : see Uniform Code of Military Justice. 

Uniform Code of Military Justice: 10 U.S.C. §§ 801-940 (1970) . 

Venezuela 

Codigo de Justicia Militar (1958, ed. of 1969). 

Vietnam, Republic of 
Ordinance of June 2U> 1965, Promulgating the State of War through- 
out the Republic of Vietnam. 

Yugoslavia 

Infractions contre Vhumanite et contre le droit des gens: 1965 Meas- 
ures to Repress 185 ; Institute of Comparative Law, Belgrade, XI 
Collection of Yugoslav Laws (1964). 



TABLE OF TREATIES AND AGREEMENTS 

[All treaties and agreements are listed in chronological order. 
Wherever cited in the text or notes, the year of execution is given. 
All citations to specific portions of a treaty or agreement are to 
the first source given in the Table.] 

1648 Treaty of Peace between Spain and The Netherlands, signed at 
Munster, in Westphalia, 30 January 1648: 1 Parry 70 (French 
transl. ) . 

1648 Treaty of Peace between France and Her Allies and the Holy 
Roman Empire and Its Allies, signed at Munster, in Westphalia, 
24 October 1648 : 1 Parry 319 ; 1 Israel 7. 

1774 Treaty of Perpetual Peace and Amity between Russia and Tur- 
key, Kucuk Kainardji, 21 July 1774; 45 Parry 349 ; 2 Israel 913. 

1785 Treaty of Amity and Commerce betiveen Prussia and the United 
States, 10 September 1785: 8 Stat. 84; T.S. No. 292; 2 Malloy 
1477 ; 2 Miller 162 ; 8 Bevans 78 ; 49 Parry 331. 

1799 Treaty of Amity and Commerce between Prussia and the United 
States, 11 July 1799: 8 Stat. 162; T.S. No. 293; 2 Malloy 1486; 
2 Miller 433 ; 8 Bevans 88 ; 55 Parry 15. 

1805 Treaty of Peace and Amity between the United States and 
Tripoli, 4 June 1805 : 8 Stat. 214 ; T.S. No. 359 ; 2 Malloy 1788 ; 
2 Miller 529 ; 11 Bevans 1081 ; 58 Parry 143. 

1813 Cartel for the Exchayige of Prisoners of War betiveen Great 
Britain and the United States, 12 May 1813: 2 Miller 557; 1 
BFSP 1410; 62 Parry 243. 

1816 Treaty of Peace and Amity betiveen the United States and Al- 
giers, 22 & 23 December 1816 : 8 Stat. 244 ; T.S. No. 2 ; 1 Malloy 
11 ; 2 Miller 617; 5 Bevans 51 ; 9 BFSP 841 ; 66 Parry 453. 

1828 Treaty of Commerce and Navigation betiveen Prussia and the 
United States, 1 May 1828 : 8 Stat. 378 ; T.S. No. 294 ; 2 Malloy 
1496; 3 Miller 427; 8 Bevans 98; 78 Parry 279. 

1829 Treaty of Peace between Russia and Turkey, Adrianople, 14 
September 1829 : 16 BFSP 647 ; 80 Parry 83 ; 2 Israel 931. 

1848 Treaty of Guadalupe Hidalgo between Mexico and the United 
States, 2 February 1848: 9 Stat. 922; T.S. No. 207; 1 Malloy 
1107; 5 Miller 207; 9 Bevans 791; 37 BFSP 567; 2 Israel 733; 
102 Parry 29 ; 47 NWC 8. 

LVII 



LVIII 

1862 Dix-Hill Cartel, 22 July 1862: The War of the Rebellion: A 
compilation of the Official Records of the Union and Confed- 
erate Armies, Series II, Vol. IV, at 266 (1899). 

1864 Geneva Convention for the Amelioration of the Condition of the 
Wounded in Armies in the Field, 22 August 1864 : 22 Stat. 940 ; 
T.S. No. 377; 2 Malloy 1903; 1 Bevans 7; 1 AJ.I.L. Supp. 90 
55 BFSP 43; Deltenre 31; 1 Friedman 187; 47 NWC 11; 129 
Parry 361 ; Schindler & Toman 203. 

1874 Project of an International Declaration Concerning the Laws 
and Customs of War, Brussels, 27 August 1874 : 1 AJ.I.L. Supp. 
96 ; 65 BFSP 1059 ; Deltenre 575 ; 1 Friedman 194 ; Schindler 
& Toman 27; 4 Martens, N.R.G. (2d ser.) 219). 

1899 Hague Convention No. I for the Pacific Settlement of Interna- 
tional Disputes, 29 July 1899: 32 Stat. 1779; T.S. No. 392; 2 
Malloy 2016; 1 Bevans 230; 1 AJ.I.L. Supp. 107 ; 91 BFSP 970 ; 
Deltenre 67; 26 Martens, N.R.G. (2d ser.) 920. 

1899 Hague Convention No. II ivith respect to the Laws and Customs 
of War on Land (with Annexed Regulations), 29 July 1899: 
32 Stat. 1803; T.S. No. 403; 2 Malloy 2042; 1 Bevans 247; 1 
AJI.L. Supp. 129 ; 91 BFSP 988 ; Deltenre 95 ; 1 Friedman 221 ; 
26 Martens, N.R.G. (2d ser.) 949; 3 NWC 141; 47 NWC 13; 
Schindler & Toman 57. 

1899 Hague Convention No. Ill for the Adaptation to Maritime War- 
fare of the Principles of the Geneva Convention of August 22, 
186If, 29 July 1899 : 32 Stat. 1827 ; T.S. No. 396 ; 2 Malloy 2035 ; 
1 Bevans 263; 1 AJ.I.L. Supp. 159; 91 BFSP 1002; Deltenre 
125 ; 1 Friedman 236 ; 26 Martens, N.R.G. (2d ser.) 979 ; 3 NWC 
159 ; 47 NWC 21 ; Schindler & Toman 211. 

1902 Treaty of Vereeniging, Treaty of Peace between the Orange 
Free State and Republic of South Africa with Great Britain, 
31 May 1902: 95 BFSP 160; 2 Israel 1145. 

1906 Geneva Convention for the Amelioration of the Condition of the 
Wounded and Sick in Armies in the Field, 6 July 1906 : 35 Stat. 
1885; T.S. No. 464; 2 Malloy 2183; 1 Bevans 516; 1 AJ.I.L. 
Supp. 201; 99 BFSP 968; Deltenre 161; 1 Friedman 257; 6 
NWC 125; 47 NWC 24; Schindler & Toman 223. 

1907 Hague Convention No. Ill Relative to the Opening of Hostili- 
ties, 18 October 1907: 36 Stat. 2259; T.S. No. 538; 2 Malloy 
2259; 1 Bevans 619; 2 AJ.I.L. Supp. 85; 100 BFSP 326; Del- 
tenre 243; 1 Friedman 303; 3 Martens, N.R.G. (3d ser.) 437; 
8 NWC 169. 

1907 Hague Convention No. IV Respecting the Laws and Customs of 
War on Land (with Annexed Regulations) , 18 October 1907: 
36 Stat. 2277 ; T.S. No. 539 ; 2 Malloy 2269 ; 1 Bevans 631 ; 2 



LVIX 

A.J.I L. Supp. 90; 100 BFSP 338; Deltenre 251; 1 Friedman 
308; 3 Martens, N.R.G. (3d ser.) 461 ; 8 NWC 170; 47 NWC 31 ; 
Schindler & Toman 57. 

1907 Hague Convention No. V Respecting the Rights and Duties of 
Neutral Powers and Persons in Case of War on Land, 18 Octo- 
ber 1907: 36 Stat. 2310; T.S. No. 540; 2 Malloy 2290; 1 Bevans 
654; 2 A.J.I.L. Supp. 117; 100 BFSP 359; Deltenre 283; 1 
Friedman 324; 3 Martens, N.R.G. (3d ser.) 504; 8 NWC 188; 
Schindler & Toman 713. 

1907 Hague Convention No. X for the Adaptation to Maritime War- 
fare of the Principles of the Geneva Convention [of 6 July 
1906], 18 October 1907: 36 Stat. 2371; T.S. No. 543; 2 Malloy 
2326; 1 Bevans 694; 2 A.J.I.L. Supp. 153; 100 BFSP 415; Del- 
tenre 339; 1 Friedman 354; 3 Martens, N.R.G. (3d ser.) 630; 8 
NWC 201 ; Schindler & Toman 235. 

1907 Hague Convention No. XI Relative to Certain Restrictions with 
Regard to the Exercise of the Right of Capture in Naval War, 
18 October 1907: 36 Stat. 2396; T.S. No. 544; 2 Malloy 2341; 
1 Bevans 711; 2 A.J.I.L. Supp. 167; 100 BFSP 422; Deltenre 
355; 1 Friedman 364; 3 Martens, N.R.G. (3d ser.) 663; 8 NWC 
210; Schindler & Toman 599. 

1917 Agreement between Great Britain and Germany concerning 
Combatant and Civilian Prisoners of War, The Hague, 2 July 
1917: Pari. Papers, Misc. No. 12 (1917) ; 111 BFSP 257. 

1917 Final Act of the Conference of Copenhagen, executed by 
Austria -Hungary , Germany, Rumania, Russia, and Turkey, 
Copenhagen, November 1917 (Conference de Copenhague Octo- 
bre-Novembre 1917, Proces-verbal et Protocol de cloture) : copy 
on file in the Ministry of Foreign Affairs, Copenhagen, Den- 
mark. 

1917 Agreement between the British and Turkish Governments re- 
specting Prisoners of War and, Civilians, Bern, 28 December 
1917: Pari. Papers, Misc. No. 10 (1918) : 111 BFSP 557. 

1918 Treat]/ of Brest-Litovsk between the Soviet Union and the Cen- 
tral Powers and the German-Russian Agreement Supplementary 
to the Peace Treaty, 3 March 1918; [1918] For. Rel. U.S., 
Russia, I, at 442 & 445 (1931) ; 3 Malloy 3329 ; 1 Shapiro, Soviet 
Treaty Series (1917-1928), at 12 & 15; 2 Israel 1235. 

1918 Agreement between France and Germany concerning Prisoners 
of War, Bern, 26 April 1918 : Journal Officiel, 12 May 1918 ; 111 
BFSP 713. 

1918 Agreement between the British and German Governments con- 
cerning Combatant Prisoners of War and Civilians, The Hague, 
14 July 1918: Pari. Papers, Misc. No. 20 (1918) ; 111 BFSP 
279. 



LX 

1918 Agreement between the United States of America and Germany 
concerning Prisoners of War, Sanitary Personnel, and Civilians, 
Bern, 11 November 1918: [1918] For. Rel. U.S., The World 
War, Supp. 2, at 103 (1933) ; 13 A.J.I.L. Supp. 1. 

1919 Treaty of Peace with Germany, Versailles, 28 June 1919: 
[1919] 13 For. Rel. U.S., Paris Peace Conf., 55 (1947) ; 2 
Bevans 43 ; 3 Malloy 3329 ; 13 A.J.I.L. Supp. 151 ; 2 Israel 1265. 

1920 Agreement between Germany and the Russian Socialist Federal 
Soviet Republic with regard to the Mutual Repatriation of Pris- 
oners of War and Interned Civilians, Berlin, 19 April 1920: 2 
L.N.T.S. 66. 

1925 Geneva Protocol for the Prohibition of the Use in War of As- 
phyxiating, Poisonous or other Gases, and of Bacteriological 
Methods of Warfare, 17 June 1925 : 26 U.S.T. 571 ; T.I.A.S. No. 
8061; 94 L.N.T.S. 65; 25 A.P.I.L. Supp. 94; 126 BFSP 324; 
Deltenre 442; 1 Friedman 454; 14 I.L.M. 49; 35 NWC 100; 
Schindler & Toman 109. 

1929 Geneva Convention for the Amelioration of the Condition of 
Wounded and Sick of Armies in the Field, 27 July 1929 : 47 
Stat. 2074; T.S. No. 847; 118 L.N.T.S. 303; 4 Malloy (Tren- 
with) 5209; 2 Bevans 965; 27 A.J.I.L. Supp. 43; Deltenre 461; 
1 Friedman 471; 30 Martens, N.R.G. (3d ser.) 827; 47 NWC 
40 ; Schindler & Toman 247. 

1929 Geneva Convention Relative to the Treatment of Prisoners of 
War, 27 July 1929: 47 Stat. 2021; T.S. No. 846; 118 L.N.T.S. 
343; 4 Malloy (Trenwith) 5224; 2 Bevans 932; 27 A.J.I.L. 
Supp. 59; 130 BFSP 239; Deltenre 491; 1 Friedman 488; 30 
Martens, N.R.G. (3d ser.) 848; 47 NWC 49; Schindler & 
Toman 261. 

1940 Armistice Agreement between France and Germany, 22 June 
1940; 34 A.J.I.L. Supp. 173; New York Times, 26 June 1940, 
at 4, col. 2; 2 Documents on American Foreign Relations, July 
1939-June 1940, at 427. 

1940 Armistice Agreement between France and Italy, 24 June 1940: 
34 A.J.I.L. Supp. 178 ; New York Times, 26 June 1940, at 5, col. 
2; 2 Documents on American Foreign Relations, July 1939- 
June 1940, at 436. 

1942 Agreement between the United States and Italy for the Re- 
patriation of Wounded and Sick Prisoners of War: [1942] 3 
For. Rel. U.S., Europe, 23, at 26 & 31 (1961) . 

1942 Exchange of notes between the United States and Germany for 
the Repatriation and Hospitalization of [Wounded and Sick] 
Prisoners of War, 4 & 30 March 1942: 56 Stat. 1507; E.A.S. 
No. 255 ; 8 Bevans 243. 



LXI 

1943 Armistice Agreement ivith Italy, 3 September 1943 : 61 Stat. 
2740; T.I.A.S. No. 1604; 3 Bevans 769; 40 AJ.I.L. Supp. 1. 

1944 Armistice Agreement between the Soviet Union and Finland, 
19 September 1944; 39 AJ.I.L. Supp. 85. 

1945 Armistice Agreement with Hungary, 20 January 1945: 140 
U.N.T.S. 397 ; 59 Stat. 1321 ; 3 Bevans 995 ; 39 AJ.I.L. Supp. 97. 

1945 Yalta Agreement Relating to Prisoners of War and Civilians 
Liberated by Forces Operating under Soviet Command and 
Forces Operating under United States of America Command, 
11 February 1945; 59 Stat. 1874; E.A.S. No. 505; 11 Bevans 
1286. 

1945 Agreement for the Prosecution and Punishment of the Major 
War Criminals of the European Axis, with annexed Charter of 
the International Military Tribunal, London, 8 August 1945 : 
59 Stat. 1544; E.A.S. No. 472; 82 U.N.T.S. 279; 3 Bevans 1238; 
39 AJ.I.L. Supp. 257 ; 1 Friedman 883 ; 44 NWC 249 : Schindler 
& Toman 689. 

1946 Charter of the International Military Tribunal for the Far 
East, Tokyo, 19 January 1946 : T.I.A.S. No. 1589 ; 4 Bevans 21 ; 
1 Friedman 894; 45 NWC 317. 

1947 Treaty of Peace with Hungary, 10 February 1947: 61 Stat. 
2065; T.I.A.S. No. 1651; 41 U.N.T.S. 135; 4 Bevans 453; 4 
Israel 2553. 

1949 Armistice Agreement between Egypt and Israel, 11 March 

1949: 4 U.N. SCOR, Spec. Supp. No. 3, at 1, U.N. Doc. S/1264/ 

Rev. 1 (1949). 
1949 Armistice Agreement between Lebanon and Israel, 23 March 

1949: 4 U.N. SCOR, Spec. Supp. No. 4, at 1, U.N. Doc. S/1296/ 

Rev. 1 (1949). 
1949 Geneva Conventions of August 12, 1949, for the Protection of 

War Victims: 

1. Geneva Convention for the Amelioration of the Condition 
of the Wounded and, Sick in Armed Forces in the Field 
(First Convention) : 6 U.S.T. 3114; T.I.A.S. No. 3362; 75 
U.N.T.S. 31 ; 1 Final Record at 205 ; 157 BFSP 234 ; 1 Fried- 
man 525 ; 47 NWC 81 ; Schindler & Toman 295. 

2. Geneva Convention for the Amelioration of the Condition of 
Wounded, Sick and Shipwrecked Members of Armed Forces 
at Sea (Second Convention) : 6 U.S.T. 3217; T.I.A.S. No. 
3363; 75 U.N.T.S. 85; 1 Final Record at 225; 157 BFSP 
262; 1 Friedman 570; 47 NWC 106; Schindler & Toman 
323. 

3. Geneva Conventioyi Relative to the Treatment of Prisoners 
of War (Third Convention): 6 U.S.T. 3316; T.I.A.S. No. 



LXII 

3364; 75 U.N.T.S. 135; 1 Final Record 243; 47 AJ.I.L. 
Supp. 119; 157 BFSP 284; 1 Friedman 589; 47 NWC 116; 
Schindler & Toman 345 ; Appendix A hereof. 
4. Geneva Convention Relative to the Protection of Civilian 
Persons in Time of War (Fourth Convention) : 6 U.S.T. 
3516; T.I.A.S. No. 3365; 75 U.N.T.S. 287; 1 Final Record 
297; 50 AJ.I.L. 724; 157 BFSP 355; 1 Friedman 641; 47 
NWC 170; Schindler & Toman 417. 
1951 Convention Relating to the Status of Refugees, 28 July 1951 : 
189 U.N.T.S. 150. (Protocol of 31 January 1967: 19 U.S.T. 
6223; T.I.A.S. No. 6577; 606 U.N.T.S. 268.) 
1951 Draft Code of Offences Against the Peace and Security of Man- 
kind: 6 U.N. GAOR, Supp. 9, at 11, U.N. Doc. A/1858 (1951) ; 
[1951] 2 Y.B. Int. L. Com. 134, U.N. Doc. A/CN.4/ SER 
A/1951/Add.l (1957). 
1951 Treaty of Peace with Japan, San Francisco, 8 September 1951 : 
3 U.S.T. 3169; T.I.A.S. No. 2490; 136 U.N.T.S. 46; 4 Israel 
2641. 
1953 Notes on the Exchange of Wounded Prisoners [of War] in 
Korea (22 February 1953 & 28 March 1953) : 28 Dept. State 
Bull. 494-95; 24 Current History 314-15 (1953). 
1953 Agreement on the Repatriation of Sick and Wounded Prisoners 
[of War] in Korea, 11 April 1953: 28 Dept. State Bull. 576; 47 
AJ.I.L. Supp. 178. 
1953 Agreement on Prisoners of War in Korea, 8 June 1953: 28 
Dept. State Bull. 866; 47 AJ.I.L. Supp. 180. 

1953 Agreement betiveen the Commander-in-Chief , United Nations 
Command, on the One Hand, and the Supreme Commander of 
the Korean People's Army and the Commander of the Chinese 
People's Volunteers, on the Other Hand, Concerning a Military 
Armistice in Korea, 27 July 1953: 4 U.S.T. 234; T.I.A.S. No. 
2782 ; 47 AJ.I.L. Supp. 186 ; 4 Israel 2657 ; 8 U.N. SCOR, Supp. 
July-Sep. 1953, at 22, U.N. Doc. S/3079; U.N. Doc. A/2431 
(7 August 1953). 

1954 Hague Convention for the Protection of Cultural Property in 
the Event of Armed Conflict, 14 May 1954: 249 U.N.T.S. 240; 
Schindler & Toman 529. 

1961 Vienna Convention on Diplomatic Relations, 18 April 1961 : 23 
U.S.T. 3227; T.I.A.S. No. 7502; 500 U.N.T.S. 96. 

1968 Convention on the N on- Applicability of Statutory Limitations 
to War Crimes and Crimes against Humanity, 26 November 
1968 : 754 U.N.T.S. 73 ; 8 I.L.M. 69 ; Schindler & Toman 703. 

1970 Convention for the Suppression of Unlawful Seizure of Aircraft 
(Hijacking), The Hague, 16 December 1970: 22 U.S.T. 1641; 
T.I.A.S. No. 7192; 10 I.L.M. 133. 



LXIII 

1971 Convention for the Suppression of Unlawful Acts against the 
Safety of Civil Aviation (Sabotage), Montreal, 23 September 
1971: 24 U.S.T. 564; T.I.A.S. No. 7570; 66 AJ.I.L. 455; 10 
I.L.M. 1151. 

1972 Simla Agreement on Bilateral Relations between the Govern- 
ment of India and the Government of Pakistan, 3 July 1972 : 11 
I.L.M. 954. 

1972 International Telegraph and Telephone Consultative Committee 
Greenbook, Vth Plenary Assembly, Geneva, December 1972. 

1973 Agreement on Ending the War and Restoring Peace in Viet- 
nam, Paris, 27 January 1973 : 24 U.S.T. 1 ; T.I.A.S. No. 7542 ; 67 
AJ.I.L. 389; 12 I.L.M. 48. 

1973 Protocol Concerning the Return of Captured Military Person- 
nel, Paris, 27 January 1973: 24 U.S.T. 24; T.I.A.S. No. 7542; 
67 AJ.I.L. 407 ; 12 I.L.M. 62. 

1973 Telegraph Regulations, Geneva, 11 April 1973, annexed to the 
International Telecommunication Convention, Malaga-Torremo- 
linos, 25 October 1973: — U.S.T. — ; T.I.A.S. No. 8586; 122 
Cong. Rec. S32 (19 January 1976). 

1973 Delhi Agreement between India and Pakistan, 28 August 1973 : 
12 I.L.M. 1080. 

1973 International Telecommunication Convention, Malaga-Torremo- 
linos, 25 October 1973: — US.T. —; T.I.A.S. No. 8572; 122 
Cong. Rec. S9 (19 January 1976). (Annexed Telegraph Regu- 
lations, Geneva, 11 April 1973: — U.S.T. — ; T.I.A.S. No. 8586 
122 Cong. Rec. S32 (19 January 1976).) 

1974 Universal Postal Convention, Lausanne, 5 July 1974, Part I, 
Rules applicable in common throughout the international postal 
service: 27 U.S.T. 798; T.I.A.S. No. 8231, at 35. 






LXIV 



TABLE OF CASES 

[All cases are indexed under the name of the first-named defend- 
ant. With respect to Japanese names, the system used in the 
LRTWC has been included because of the need to be able to cross- 
refer. Cases that have attained the dignity of a popular name, 
such as the Abbaye Ardenne Case, are listed under that name, with 
a cross reference to the first-named defendant.] 

Abbaye Ardenne Case (Trial of Meyer) : 4 LRTWC 97 (Canadian Mili- 
tary Court 1945). 

All and Another v. Public Prosecutor: [1968] 3 All E.R. 488 ; 42 I.L.R. 
458 (Appeal from the Federal Court of Malaysia to the Privy Coun- 
cil 1968). 

Altstoetter, U.S. v.: see the Justice Trial 

Amberger, Trial of: see the Dreierwalde Case 

Araki et al., U.S. and Others v.: see I.M.T.F.E. 

Artukovic, Boyle v.: 107 F. Supp. 11 (S.D. Cal. 1952) ; rev'd sub nom. 
Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir.) ; cert, denied, 348 
U.S. 818 (1954) ; on remand, 140 F. Supp. 245 (S.D. Cal. 1956) ; 
aff'd sub nom. Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957) ; 
rev'd per curiam 355 U.S. 393 (1958) ; on remand, 170 F. Supp. 383 
(S.D. Cal. 1959). 

Bab a, Trial of: see Masao, Trial of 

Batchelor, U.S. v.: 7 U.S.C.M.A. 354; 22 C.M.R. 144 (1956). 

Bauer, Trial of: 8 LRTWC 15; 13 Ann. Dig. 305; 2 Friedman 1576 

(French Military Tribunal 1945). 
Belsen Trial (Trial of Kramer) : 2 LRTWC 1; 13 Ann. Dig. 267; 2 

Friedman 1499 (British Military Court 1945). 
Brandt, U.S. v.: see the Medical Case 
Brosig, Rex v.: [1945] 2 D.L.R. 232; 12 Ann. Dig. 404 (Ontario Court 

of Appeals 1945). 
Bruns, Trial of: 3 LRTWC 15; 13 Ann. Dig. 391 (Norwegian Supreme 

Court 1946). 
Bury, Trial of: 3 LRTWC 62 (U.S. Military Commission 1945) . 

Calley, U.S. v.: 46 C.M.R. 1131 (ACMR) ; aff'd, 22 U.S.C.M.A. 534, 48 
C.M.R. 19 (1973) ; habeas corpus granted sub nom. Calley v. Callo- 
way, 382 F. Supp. 650; rev'd, 496 F.2d 701 (5th Cir.) ; petition for 
reh. en banc denied, 497 F.2d 1384; on remand, 382 F. Supp. 650 
(M.D. Ga. 1974) ; rev'd en banc, 519 F.2d 184 (5th Cir. 1975) ; cert. 

LXV 



LXVI 

denied sub nom. Calley v. Hoffman, 425 U.S. 911 (1976). (The trial 

judge's instructions are reprinted in 2 Friedman 1703.) 
Casement, Rex v.: [1917] 1 K.B. 134; 115 Law Times Rep. 277 (K.B., 

CCA. 1916) ; 3 Brit. Int. Law Cases 637 (1965). 
Charlton v. Kelly, Sheriff: 229 U.S. 447 (1913). 
Chuichi, Trial of: see Tanaka, Trial of 
Colepaugh v. Looney, Warden: 235 F.2d 429 (10th Cir. 1956), cert. 

denied, 352 U.S. 1014 (1957) ; 23 I.L.R. 759. 
Covert, Reid v.: 354 U.S. 1 (1957). 

Dickenson, U.S. v.: 6 U.S.CM.A. 438; 20 C.M.R. 154 (1955). 
Dogger Bank Case: Scott, Hague Court Reports 403 (1916) ; 2 A.J.I.L. 

931 (Hague Commission of Inquiry 1905). 
Dostler Case (Trial of Dostler) : 1 LRTWC 22 ; 13 Ann. Dig. 280 (U.S. 

Military Commission 1945). 
Dover Castle Case: 16 A.J.I.L. 704; 2 Ann. Dig. 429 (Leipzig Supreme 

Court 1921). 
Dreierwalde Case (Trial of Amberger) : 1 LRTWC 81; 13 Ann. Dig. 

291 (British Military Court 1946). 

Einsatzgruppen Case (U.S. v. Ohlendorf) : 4 TWC 1, 411; 15 Ann. 

Dig. 656 (U.S. Military Tribunal 1948). 
Eisentrager, Johnson v.: 339 U.S. 763 (1950). 
Essen Lynching Case (Trial of Heyer) : 1 LRTWC 88; 13 Ann. Dig. 

287; 2 Friedman 1482 (British Military Court 1945). 

Falkenhorst, Trial of: 11 LRTWC 18; 2 Friedman 1555 (British Mili- 
tary Court 1946). 

Farina, U.S. v.: CM. 237,885 (ABR 1943). 

Floyd, U.S. v.: 18 C.M.R. 362 (ABR 1955), petition for rev. denied, 
19 C.M.R. 413 (1955). 

Genocide Convention, Advisory Opinion on Reservations to: [1951] 

I.C.J. Reports 1. 
Giuseppe, Rex v.: [1943] S. Afr. L. R. 139 (T.P.D.) ; 12 Ann. Dig. 

411 (South African Supreme Court, Transvaal, Provincial Division 

1942). 
Goering, U.S. and Others v.: see I.M.T. 
Gozawa Trial: Sleeman (ed.), The Gozaiva Trial (1948) (British 

Military Court 1946). 
Griff en, U.S. v.: 39 C.M.R. 586 (ABR 1968), petition for rev. denied 

39 C.M.R. 293 (1968). 
Guagliardo, U.S. ex rel McElroy v.: 361 U.S. 281 (1960). 

Harukei, Trial of: 5 LRTWC 60 (U.S. Military Commission 1946) . 
Heering, Trial of: 11 LRTWC 79 (British Military Court 1946) . 
Heyer, Trial of: see Essen Lynching Case 



LXVII 

High Command Case (U.S. v. von Leeb) : 10 TWC 1, 11 TWC 462; 12 
LRTWC 1; 15 Ann. Dig. 376; 2 Friedman 1421 (U.S. Military Tri- 
bunal 1948). 

Hisakasu, Trial of: see Tanaka, Trial of 

Hoess, Trial of: 7 LRTWC 11 ; 2 Friedman 1520 (Polish Supreme Na- 
tional Tribunal 1947). 

I.G. Farben Case (U.S. v. Krauch) : 7 TWC 1, 8 TWC 1081; 10 
LRTWC 1 ; 15 Ann. Dig. 668 (U.S. Military Tribunal 1948) . 

I.M.T. (U.S. and Others v. Goering) : 22 TMWC 411 ; Nazi Conspiracy 
and Aggression: Opinion and Judgment; 41 A.J.I.L. 172; 45 NWC 
243; 2 Friedman 922 (International Military Tribunal 1946). 

l.M.T.F.E. (U.S. and Others v. Araki) : International Military Tri- 
bunal for the Far East: Opinion and Judgment (mimeo.) ; 46 NWC 
71; 2 Friedman 1029 (International Military Tribunal for the Far 
East 1948). 

Isayama, Trial of: see Harukei, Trial of 

Jaluit Atoll Case (Trial of Nisuke) : 1 LRTWC 71 ; 13 Ann. Dig. 286 ; 

2 Friedman 1471 (U.S. Military Commission 1945). 
Justice Trial (U.S. v. Altstoetter) : 3 TWC 1, 954; 6 LRTWC 1; 14 

Ann. Dig. 278; 2 Friedman 1196 (U.S. Military Tribunal 1947). 

Kaehler, Rex v.: [1945] 3 D.L.R. 272; [1945] 1 W.W.R. 566; 83 Can. 

Crim. Cases 353 ; 12 Ann. Dig. 397 (Alberta Supreme Court, App. 

Div. 1945). 
Kassem, Military Prosecutor v.: 42 I.L.R. 470; Law and Courts in the 

Israel-Held Areas 17 (Israeli Military Court 1969). 
Kaukoreit, U.S. v.: 59 B.R. (Army) 7 (ABR 1946) (CM. 302,791). 
Killinger, Trial of: 3 LRTWC 67; 13 Ann. Dig. 290 (British Military 

Court 1945). 
Koi, Public Prosecutor v.: [1968] A.C. 829; [1968] 1 All E.R. 419; 

42 I.L.R. 441 (Appeal from the Federal Court of Malaysia to the 

Privy Council 1967). 
Koshiro, Trial of: see Tanabe, Trial of 
Kramer, Trial of: see the Belsen Trial 
Krauch, U.S. v.: see the I.G. Farben Case 
Krebs, Rex v.: [1943] 4 D.L.R. 553; 80 Can Crim. Cases 279; 38 

A.J.I.L. 505; 12 Ann. Dig. 407 (Renfrew County Ontario Mag. 

Court 1943). 
Krofan, Public Prosecutor v.: [1967] 1 Malaya L.J. 133; 10 Malaya 

L. Rev. 346 (Federal Court, Singapore 1966). 

Llandovery Castle Case: 16 A.J.I.L. 708 ; 2 Ann. Dig. 436 ; 1 Friedman 
868 (Leipzig Supreme Court 1921). 

Mackensen, Trial of: 11 LRTWC 81 (British Military Court 1946). 



XLVIII 



Tchirkovitch, Stevan 

Tchirkovitch, Nouvelles conventions ("Les nouvelles Conventions 
Internationales de Geneve relative a la protection des victimes de 
guerre, du 12 aout 1949"), 54 R.G.D.I.P. 97 (1950) 

Tedjini, Rene 
Tedjini, Temoignage ("Temoignage d'un ancien prisonnier de guerre 
francais, ancien homme de confiance principal du Stalag V"), 30 
R.I.C.R. 624 (1948) 

Third Convention 

1949 Geneva Convention Relative to the Treatment of Prisoners of 
War (q.v. in the Table of Treaties and Agreements) 

TMWC 

Trial of Major War Criminals (see I.M.T. in the Table of Cases) 

Tokyo Trial 

International Military Tribunal for the Far East (see LM.T.F.E. in 
the Table of Cases) 

Tollefson, Martin 

"Enemy Prisoners of War," 32 Iowa L. Rev. 51 (1946) 

Toman, Jiri 
Index of the Geneva Conventions for the Protection of War Victims 
of 12 August 1949 (1973) 

Toomepuu, Tonu 

"Trial of American Civilians as War Criminals in American Courts," 
31 Fed. Bar J. 73 (1972) 

Toppe, Alfred 

Toppe, German Methods ("German Methods of Interrogating Pris- 
oners of War in World War 11") (ms. 1949, The Army Library, 
Pentagon, Washington, D.C.) 

Trainin, Aron N. 

Hitlerite Responsibility under Criminal Law (1945) 

Trainin, I. P. 

Trainin, Guerrilla Warfare ("Questions of Guerrilla Warfare in the 
Law of War"), 40 A.J.I.L. 534 (Hazard transl. 1946) 

Trans. 

Transactions of the Grotius Society, 1915-date (1916-date) 

Tuck, Edward H. 

Tuck, Retention ("The Rentention of Prisoners of War") (ms. 1953, 
Harvard Law Library) 



LXIX 

Tesch, In re : see the Zyklon B Case 

Toth, U.S. ex rel. v. Quarles: 350 U.S. 11 (1955). 

Wagner, Trial of: 3 LRTWC 23 (French Permanent Military Tribunal 

and Court of Cassation 1946) . 
von Leeb, U.S. v.: see the High Command Case 
von Weizsaecker, U.S. v.: see the Ministries Case 
Werner, Rex v.: [1947] 2 S. Afr. L.R. 828; 14 Ann. Dig. 202 (Union 

of South Africa Supreme Court, App. Div. 1947). 
Wielen, In re: see the Stalag Luft HI Case 
Wirz, U.S. v.: 8 Am. State Trials 657 (1917) ; 1 Friedman 783 (U.S. 

Military Commission 1865). 

Yamashita, Application of: 327 U.S. 1; 40 A.J.I.L. 432; 2 Friedman 
1596 (1946). 

Zuehlke, Trial of: 14 LRTWC 139; 2 Friedman 1543 (Netherlands 
Special Court in Amsterdam and Netherlands Special Court of Cas- 
sation 1948). 

Zyklon B Case (In re Tesch) : 1 LRTWC 93; 13 Ann. Dig. 250; 2 
Friedman 1487 (British Military Court 1946). 



CHAPTER I 
PRELIMINARY PROBLEMS 

A. INTRODUCTORY 

The events of almost six years of armed conflict during World 
War II clearly demonstrated the deficiencies which existed in the 1929 
Geneva Convention Relative to the Treatment of Prisoners of War, 1 
the treaty by which most of the belligerents in that conflict were 
bound in their treatment of prisoners of war. 2 Almost before that con- 
flict had ended, the International Committee of the Red Cross (the 
ICRC) 3 began a series of conferences of technical experts, government 
experts, national Red Cross officials, and other specialists, in order to 
obtain a cross section of views as to what was needed to bring the law 
for the protection of prisoners of war into the second half of the twen- 
tieth century. By 1948 a draft convention, with a number of innova- 
tions, had been prepared and it was submitted to the XVIIth Interna- 
tional Red Cross Conference which met in Stockholm in August of 
that year. 4 The ICRC draft was modified and approved by the Red 



1 Citations for all treaties and cases referred to in the text or notes will be found 
in the appropriate table, beginning at pp. lvii and lxv, respectively. Citations for, 
and the full names of, all works to which reference is made will be found in the 
Table of Abbreviations, Articles, Books and Documents, beginning at p. xix. 

- The Soviet Union and Japan were not Parties to the 1929 Geneva Prisoner-of- 
War Convention. Japan signed that Convention but did not ratify it. The Soviet 
Union did not participate in the drafting of the Convention and never adhered to it. 

'•'' The International Committee of the Red Cross (ICRC) is a century-old human- 
itarian organization composed entirely of Swiss citizens which maintains a strictly 
neutral status in all armed conflicts, offering its services equally to both sides. 
Since 1864 it has been the motivating force behind the series of humanitarian 
"Geneva" Conventions. See note 276 infra. Its status and activities in wartime are 
officially recognized and formalized in the 1949 Geneva Conventions, note 4 infra. 
At its behest a Diplomatic Conference had been called by the Swiss Federal Council 
to meet early in 1940 to revise the 1929 Convention, but the outbreak of hostilities 
in September 1939 had prevented this Conference from convening. 

4 Actually, there were four draft revised or new conventions prepared by the 
ICRC and presented to the Red Cross Conference. See Draft Revised Conventions 
4, 34, 51, & 153. The Prisoner-of-War Convention was the third of the group and 
is therefore sometimes referred to as the "Third Convention." The four conventions 
are known collectively as the 1949 Geneva Conventions for the Protection of War 
Victims. 



Cross Conference. 5 The Swiss Federal Council had already instituted 
action for the convening of a Diplomatic Conference to consider the 
matter and that Conference met in Geneva in April 1949. Using the 
Stockholm approved draft as the working document, after almost four 
months of discussions, negotiations, compromises, agreements, and 
disagreements, the Diplomatic Conference completed the drafting of, 
among others, the Geneva Convention Relative to the Treatment of 
Prisoners of War of 12 August 1949. 6 

Of course, the law relating to prisoners of war began to develop 
long before the drafting of the two treaties just mentioned. A com- 
plete and detailed presentation of the development of custom and law 
applicable to the prisoner of war over the period of the recorded his- 
tory of mankind is beyond the scope and purpose of this study. Our 
concern is with the status of the prisoner of war under international 
law today, and, of even more importance, tomorrow. However, as is 
true of the study of most areas of contemporary life, some knowledge 
of the pertinent history of the subject under discussion will serve not 
only to ensure a better understanding of present-day law and proce- 
dures, but also to furnish a basis for the proper interpretation of some 
of the applicable rules which have had their origin in the need to solve 
a particular problem in time past. Accordingly, it is considered ap- 
propriate to lay a foundation for the discussion in depth which follows 
by beginning with what is admittedly an extremely abbreviated his- 
tory of the treatment of prisoners of war over the ages. 7 

B. HISTORICAL 

In the early days of recorded history the concept of the "prisoner 
of war" was completely unknown. It necessarily follows that there was 



5 Revised Draft Conventions 5. 

6 See Appendix A. Inasmuch as the complete Convention is reproduced in Ap- 
pendix A, when specific articles are cited or quoted they will not be footnoted. 
Fifty-nine Governments participated in the Diplomatic Conference. Sixty-four 
(including the Holy See) signed the Conventions at the conclusion of the Confer- 
ence. For a complete list of the subsequent ratifications and adherences, up to 
1 June 1977, see Appendix B. In this study the 1949 Prisoner-of-War Conven- 
tion will normally be referred to as "the Convention" or "the 1949 Convention." 

7 The three most comprehensive recent histories in English of the treatment of 
prisoners of war over the, ages are, unfortunately, all in manuscript form. They 
are, in the chronological order of their preparation : Vizzard, Prisoner of War 
Policy in Relation to Changing Concepts of War (Ph.D. thesis, University of Cali- 
fornia, 1961) (Vizzard, Policy) ; United States Army, Office of the Provost Mar- 
shal General, A Review of United States Policy on Treatment of Prisoners of War 
(1968) (PMG Review) ; and Grady, The Evolution of Ethical and Legal Concern 
for the Prisoner of War (Dissertation, Graduate School of Theology, The Catholic 
University of America, 1970) (Grady, Evolution). The author is indebted to Mr. 
David Ellis, then of the Office of the Provost Marshal General, Department of the 
Army, for making copies of the latter two available. These three manuscripts are 
the source of much of the material which appears in this section. 



no such thing as a set of customs or rules protecting individuals, either 
combatant or noncombatant, man, woman, or child, taken captive in 
battle. They were, in fact, quickly slaughtered; and the victor well 
knew that this would be his fate, too, should he be less fortunate on 
the occasion of the next battle. The Old Testament is replete with 
stories of the slaughter of persons captured in war, both soldier and 
civilian ; 8 and the practice was one which was, and long continued to 
be, followed by all nations. During this period, and for many centuries 
thereafter, the captive taken in war became the private property of 
his captor, who exercised the power of life or death over him. 

As early as several millennia B.C., Egyptian and Mesopotamian 
civilizations began to make slaves of prisoners of war rather than kill- 
ing them. This change in practice was based on economic, rather than 
humanitarian, considerations. The agricultural economy which was 
just beginning to develop in that area required manpower to work 
in the fields ; and prisoners of war as slaves constituted such manpow- 
er. However, the custom was apparently not widely adopted by other 
contemporary or later civilizations until the advent of the Roman era. 

When Greece became the center of Mediterranean civilization, there 
was no improvement in the lot of the prisoner of war, unless he was a 
Greek of another City-State, in which event he could be ransomed. In 
a few cases there were exchanges of prisoners of war captured by the 
two sides. In general, however, the fate of most captives of this period 
was mutilation and death, only a few being enslaved by their captors 
or sold into slavery elsewhere in Greece. 9 

The Romans at first followed in the footsteps of their predecessors. 
However, by the beginning of the Christian era both exchanges of 
prisoners of war between opposing generals and ransoming had be- 
come quite common. Later, as the Romans — like the Egyptians 2,000 
or more years earlier — came to realize the economic value of the pris- 
oner of war, enslavement became the prevailing practice. 10 In the 
course of time the genius of the Roman law even evolved rules con- 
trolling some aspects of the treatment of these slaves ; for example, it 
prohibited the Roman master from the wanton killing of his slave. 

Generally speaking, during this early period of recorded history the 
slaughter of prisoners of war was also the general practice in Asia. 
At certain periods there were exceptions in a few Asiatic countries. 
Thus, both Sun Tzu's The Art of War, which probably dates from 
about the fourth century B.C., and the Manu Sriti, a Sanskrit treatise 



8 See, e.g., Numbers 31:7-8, 17; Deuteronomy 3:6, 20:13-17; Joshua 6:21, 10:35, 
37, 39, 11:11; I Samuel 15:3. But see II Kings 6:22-23. 

9 2 Phillipson, The International Law and Custom of Ancient Greece and Rome 
251-52,257-63 (1911). 

10 Ibid., 253-57, 263-66; Davis, Prisoner of War 523. But see Creasy, Decisive 
Battles of the World 126 (describing German reciprocal killing of Roman prisoners 
of war in A.D. 9 during Arminius* victory over Vars' legions). 



on law which probably dates from the period between 200 B.C. and 
a.d. 200, forbade the slaying of prisoners of war. Absorption into 
one's own army, enslavement, or ransom were the alternatives. 

With the fall of the Roman Empire, Europe entered the Dark Ages. 
Neither combatants nor noncombatants had any rights. During this 
period the Catholic Church engaged in the ransoming of Christian 
prisoners of war; and while the Church made a number of efforts to 
improve the lot of the prisoner of war, these efforts related only to 
warring members of the Church and non-Catholic prisoners of war 
could expect no help from this source. 

The era of chivalry saw a definite code evolve under which captured 
knights were well treated and were held for ransom. They might even 
be released on parole to raise the ransom, 11 but this code applied only 
to the knight, not to the foot soldier. For him there was no system 
of ransom ; and when captured he could expect to be treated with his- 
toric ruthlessness. Massacres and enslavement of prisoners of war 
were still the order of the day during the Crusades. The Crusaders 
massacred all captured Saracens and enslaved all captured Eastern 
Christians; 12 while the Saracens, with equal ferocity, massacred all 
captured Christians. 13 



11 Keen, The Laws of War in the Late Middle Ages 156-85 (1965). Richard the 
Lion-Hearted of England was thus released before his full ransom had been paid 
to Emperor Henry VI. 

12 Although the Third Lateran Concilium (1179) is often stated to have made a 
pronouncement against the enslavement of Christian prisoners of war (see, for 
example, Marin, Recueil 655), this was actually limited to shipwrecked Christians 
(5 Hefele, Histoire des Conciles 1105) and apparently had little effect on actual 
practice. 

13 The uniformity of the practice in this early era is attested to by the following 
statement from Khadduri, War and Peace (at 126-27) : "The practice of taking 
prisoners of war as part of the spoil is very old and goes back to antiquity. The 
Persians treated their captives with relentless cruelty: they were blinded, tortured, 
and finally killed or crucified. The Hebraic rule was no less severe than Persian 
practice. The Muslims, regarding captives also as part of the spoil, often treated 
them no less cruelly than their predecessors." Actually, the Koran provided that 
captured non-Muslims were to be held as prisoners of war during the continuance of 
hostilities and "[t]hen either release them as a favor, or in return for ransom." 
Quran, 47:4 (M. Z. Khan trans., 1971). In al Ghunaimi, The Muslim Conception of 
International Law and the Western Approach 190, the author quotes a more popular 
version of this Koranic statement and interprets it to mean that "the Islamic state 
has the choice only between two alternatives; either to set free the prisoners of 
war gratuitously or to claim ransom. The verse unequivocally does not entitle the 
Muslims to enslave their prisoners of war. . . ." He then goes on to argue that a 
policy of enslavement could only be justified as a sanction by way of retaliation 
"and not as a right ab initio." Ibid., 190-91. But see Mahmud, Muslim Conduct of 
State 74-76. By the thirteenth century the Muslims had developed rules of war 
which, at least, prohibited the mutilation of prisoners of war. Marin, Recueil 
656-57. 



The breakdown of feudalism, the increased use of mercenaries, and 
the rise of nationalism, all of which occurred during the Renaissance, 
contributed to an evolution in fundamental concepts which began to 
make its appearance during the seventeenth century. 14 (The religious 
wars of the Reformation were the exception, continuing the traditional 
brutal treatment and slaughter of prisoners of war. ) By the end of the 
Thirty Years' War (1648), a prisoner of war had come to be consid- 
ered as being in the custody of the enemy State, rather than of the 
individual captor. There was by then a better than even chance that 
he would not be killed or enslaved, but he still had little or no pro- 
tection against other types of maltreatment. This basic change in con- 
cept did, however, serve as a foundation upon which the principle of 
humanitarian treatment of prisoners of war could be erected. 15 It re- 
mained for Montesquieu, in his Esprit des lots, 16 and Rousseau, in his 
Contrat social, 17 to do the theoretical work, and for events emanating 
from the American and French Revolutions to lead to the practical 
changes which form the basis for the modern treatment of prisoners 
of war. 18 

The 1785 Treaty of Amity and Commerce between Prussia and the 
United States contained a provision (Article XXIV) which probably 
constituted the first international attempt to provide in time of peace 
for the protection of prisoners of war in the event that the then f riend- 



14 It was during this period that the great classical writers (among whom were 
Vitoria, Suarez, Gentilis, and Grotius) made their tremendous contributions to in- 
ternational law, and particularly to the law of war. See, e.g., Grotius, War and 
Peace, Book III, Ch. VII. 

15 Davis, Prisoner of War 525 & 540; Flory, Prisoners of War 158-60. Article 
LXIII of the Treaty of Westphalia (Minister, 30 January 1648) provided for the 
release of all prisoners of war by both sides without the payment of ransom. So 
also did Article XIV of the Treaty of Adrianople (1829). During the eighteenth 
and nineteenth centuries the practice of exchanging prisoners of war, both during 
and after the cessation of hostilities, became firmly established as a norm of in- 
ternational law. 

16 Published in 1748. Montesquieu asserted that the only right that the law of 
war gave over prisoners of war was to secure them in such a way that they could 
not further participate in the hostilities. 

17 Published in 1762. Rousseau advanced the theory that war was a relationship 
between States and that individuals were enemies only through accident and as 
soldiers. 

18 The following pertinent statement appears in Draper, Recueil, at 101 : "The 
18th century evolved the important idea that captivity was a device whereby the 
prisoner [of war] was to be prevented from returning to his own force and con- 
ducting the fight again. As a corollary to this idea it came to be accepted that the 
prisoner [of war] was not a criminal but a man pursuing an honourable calling 
who had had the misfortune to be captured. The practical implication of this was 
that the prisoner [of war] should not be put in irons and thrown into a penal 
establishment with the local convicts." To the same effect, see 2 Lauterpacht- 
Oppenheim 367-68. 



\y relations between the two countries should be disturbed by war. 19 
Considering the lack of existing precedent at the time the Treaty was 
drafted, the provisions designed "to prevent the destruction of prison- 
ers of war" are amazing in their breadth and scope. Seven years later, 
in 1792, the French National Assembly enacted a decree which at- 
tempted unilaterally to establish a formal code of humanitarian rules 
governing the treatment of prisoners of war. 20 It proved to be in ad- 
vance of its time, 21 but the rules which it contained have since been 
incorporated into the various conventions for the protection of prison- 
ers of war which were drafted more than a century later and which 
have been widely accepted by the nations of the world. 

Despite the difficulties encountered during the Napoleonic Wars, 22 



19 Substantially the same provision was contained in a new treaty between the 
same nations which was entered into in 1799. This treaty lapsed in 1810. It was 
revived by Article XII of the Treaty of Commerce and Navigation of 1 May 1828. 
This latter remained in force for almost a century but was not revived after World 
War I. A very similar provision may be found in Article XXII of the Treaty of 
Guadalupe Hidalgo between the United States and Mexico, which was signed in 
1848. Even the 1805 Treaty of Peace and Amity between the United States and 
Tripoli and the 1816 Treaty of Peace and Amity between the United States and 
Algiers contained provisions for the benefit of prisoners of war. 

20 Decret rendu par V Assemblee nationale le U mai 1792 concernant les militaires 
faits prisonniers de guerre (Decree of 4 May 1792, of the French National Assem- 
bly, 1 DeClercq, Recueil des traites de la France 217. The decree read in part as 
follows (transl. mine) : 

1. Prisoners of war are under the safeguard and protection of the [French] 
nation. 

2. All cruel acts, violence or insults committed against a prisoner of war 
shall be punished as if committed against a French citizen. 

3. Prisoners of war shall be transported in the rear of the army to special 
places which the commanding generals shall have designated. 

The skeptic might be inclined to ascribe to this action of the French Revolutionary 
legislature the same motives which impelled the Chinese Communists to institute 
their so-called Lenient Policy towards United Nations Command prisoners of war 
during the Korean hostilities. U.K., Treatment. 31. 

- 1 It is, indeed, a paradox that one of the worst war crimes committed against 
prisoners of war in modern times, prior to World War II, was the killing at Jaffa 
in 1799, by Napoleon Bonaparte (then a general serving under the French Direc- 
tory), of more than 3,500 Arab prisoners of war for whom he was unable to spare 
a guard from his already understrength army. British Manual para. 137 n.l. (Con- 
cerning a modern massacre of prisoners of war, smaller in total numbers, but of 
similar inhumanity, see Whiting, Massacre at Malmedy 45-46 & 52-54.) Napoleon 
is also charged with having "destroyed the old exchange system, which has never 
been fully restored." Laws, Exchange 604-05. See also, Lewis, Napoleon 66-82. 

22 Even at this early date the treatment of prisoners of war had become a sub- 
ject for legislative investigations, which resulted in findings of exemplary treatment 
of prisoners of war by one's own country and unprecedented cruelty in the treat- 
ment of prisoners of war by the enemy. United Kingdom, Foreign Office. Report of 
the Committee of the House of Commons relative to the Treatment of Prisoners of 
War (1798). 



the treatment of prisoners of war continued to improve. 23 Obviously, 
the nations of Europe and the New World were slowly but surely ar- 
riving at the realization that the mutual maltreatment of prisoners of 
war was an anachronism which had no place in nineteenth-century 
civilization. An opinion of the King's Advocate, written in 1832, clearly 
demonstrates the extent to which prisoners of war had gained the right 
of protection, and the sanctions which, it was suggested, nations were 
prepared to take to ensure that such protection was forthcoming. 24 He 
stated : 

. . . cases may possibly occur in which the treatment of Prisoners 
of War by a nation may be so barbarous and inhuman as to call 
upon other powers to make common cause against it, and to take 
such measures as may be necessary to compel it to abandon such 
practice, and to conform itself to the more lenient exercise of the 
rights of war, adopted by other States . . . , 25 

The advent of the American Civil War (1861-65) created prisoner- 
of-war problems which probably exceeded any previously known. 26 
A system of exchange during the course of hostilities was agreed upon 
but did not operate successfully. 27 A Code drafted by Dr. Francis Lie- 
ber for the use of the Union army 28 contained a number of articles 
dealing with prisoners of war, 29 but these can scarcely be said to have 



23 Although there is some question as to whether it was ever legally in force, the 
extensive provisions of the Cartel for the Exchange of Prisoners of War between 
Great Britain and the United States of America, signed at Washington, on 12 May 
1813, indicate the great breadth of the rules which had evolved for the protection 
of prisoners of war by the beginning of the nineteenth century. For a discussion 
of this agreement and of one of 1820 between Colombia and Spain, see Basdevant, 
Deux conventions 5. See also Anon., A Treaty for the Regulation of War in 1820, 
13 I.R.R.C. 52. 

24 Unfortunately, although, as we shall see (p. 26 infra), the 1949 Convention 
specifically provides that every Party undertakes to "ensure" respect for the 
agreed-upon rules for the protection of prisoners of war, third-party States are 
extremely reluctant to intervene even in cases of the most blatant violations. 

25 3 McNair (ed.), International Law Opinions 119 (1956). 

26 See Laska & Smith, 'Hell and the Devil': Andersonville and the Trial of 
Captain Henry Wirz, C.S.A., 1865, 68 Mil. L. Rev. 77. For a fictional, but sub- 
stantially factual, presentation of the treatment, or maltreatment, of prisoners of 
war during this conflict, see Kantor, Andersonville. 

2 " See p. 398 infra. 

28 United States Army, General Orders No. 100, 24 April 1863, Instructions for 
the Government of the Armies of the United States in the Field, more generally 
known as the "Lieber Code." For comments on these Instructions, see Marin, 
Recueil 662-64; Coursier, Lieber 377; Baxter, Codification 171. Article 56 of the 
Instructions provided : 

A prisoner of war is subject to no punishment for being a public enemy, nor 
is any revenge wreaked upon him by the intentional infliction of any suffering, 
or disgrace, by cruel punishment, want of food, by mutilation, death, or any 
other barbarity. 

2 9 Articles 56, 59, 71-80, and 105-110. 



8 

done more than to assure them of some basic protection. Moreover, 
while this Code had been prepared by Dr. Lieber, and it undoubtedly 
benefited from his prestige, it was, nevertheless, simply a unilateral 
act of the U. S. Government and it had no international status — except 
that it did provide an important source for the drafting of subsequent 
codes on the subject. 

The balance of the nineteenth century saw a number of efforts, both 
unofficial and official, to codify the law of war, including that relating 
to prisoners of war. The Swiss international jurist, Bluntschli, pro- 
duced two significant works on the subject at this time ; 30 and Field, an 
American, made a major contribution to the growing literature on the 
subject shortly thereafter, 31 Then in 1874 an international conference 
called by the Tsar of Russia convened in Brussels and made the first 
attempt by governments to codify the law of war. While the Declara- 
tion of Brussels 32 which emanated from that conference never entered 
into effect as an international agreement, it unquestionably had a 
very considerable influence on subsequent governmental codification 
efforts which were successful. And finally, in 1880 the Institute of In- 
ternational Law produced the Oxford Manual, 33 another influential, 
but unofficial, codification of the law of war. 

These numerous attempts by diplomats and international jurists to 
codify the law of war, including the rules relating to the treatment of 
prisoners of war, not only constituted important source material, but 
also contributed greatly to the international climate which made pos- 
sible the successful drafting of the Regulations Respecting the Laws 
and Customs of War on Land attached to the Second Hague Conven- 
tion of 1899. This was the first effective multilateral codification of 
the law of war. Its impact on the rules governing the treatment of 
prisoners of war and subsequent codifications on that subject was im- 
measurable. 34 

The Russo-Japanese War (1904-05) was the only major conflict to 



30 Bluntschli, Das moderne Kriegsrecht, based on his friend Lieber's works, and 
Das moderne Volkerrecht. 

31 Field, Draft Outlines of an International Code. Influenced, no doubt, by events 
in the American Civil War (1861-65), Field was probably somewhat less human- 
itarian than Bluntschli. 

3 - Articles 9-11 and 23-34 of the Declaration dealt with prisoners of war. Al- 
though the Declaration did not become effective, in the Russo-Turkish War (1877- 
78), the Tsar ordered that Russian troops comply with its provision and in July 
1877 he issued a "Regulation concerning prisoners of war" which was extremely 
humane. Scott, Resolutions 17, 19. 

33 Articles 21-23 and 61-78 of the Manual dealt with prisoners of war. 

34 The foregoing discussion should not be construed as in any manner denigrat- 
ing from the affirmative effect of the successful drafting and ratification of the 
1864 Geneva Convention for the Amelioration of the Condition of the Wounded in 
Armies in the Field. This was, of course, the first of the series of Geneva humani- 
tarian conventions. (See note 276 infra.) 



occur while the Second Hague Convention of 1899 and its Regulations 
were in effect. 35 They were soon replaced by the Fourth Hague Con- 
vention of 1907 36 and by the Regulations attached to that Conven- 
tion. 37 It was this Convention which was in effect during World War 
I, 38 and practically all of the belligerents found the prisoner-of-war 
provisions to be inadequate. As a result, the prisoner-of-war provisions 
of those Regulations were supplemented by a great many special mul- 
tilateral and bilateral agreements which were entered into during the 
course of the conflict. 39 This clear evidence of its inadequacy 40 enabled 
the ICRC to promote and secure the drafting of a new agreement deal- 
ing exclusively with prisoners of war, which was completed and signed 
in Geneva in July 1929. 41 When World War II commenced there were 
more than 40 Parties to this Convention. 42 As had been realized, 43 its 
application during that conflict demonstrated once again that a num- 
ber of material provisions for the adequate protection of prisoners of 



35 Despite some partisan claims (see, for example, Takahashi, Russo-Japanese 
War 102), the treatment of prisoners of war in this conflict was probably almost 
exemplary on both sides. Franklin, Protection 78-79 ; Ariga, Guerre russo- 
japonaise 93-130. 

36 Article 4 of this Convention provided that it replaced the cognate 1899 Con- 
vention as between the Contracting Parties. 

37 There were only very minor differences between the prisoner-of-war provi- 
sions of the Regulations attached to the two Conventions. For a detailed discussion 
of the law and practice of this era, see DuPayrat, he prisonnier de guerre dans la 
guerre continentale. 

38 While it had a si omyies (general participation) clause, and at least one of the 
belligerents (Serbia) was not a Party to the Convention, all of the belligerent 
Parties apparently accepted it as being in force. 2 Lauterpacht-Oppenheim 234. 

39 See, e.g., the Agreement between Great Britain and Germany concerning 
Combatant and Civilian Prisoners of War, executed at The Hague, 2 July 1917; 
Agreement between the British and German Governments concerning Combatant 
Prisoners of War and Civilians, 14 July 1918; the Final Act of the Conference of 
Copenhagen, executed by Austria-Hungary, Germany, Rumania, Turkey, and Russia 
on 2 November 1917; the Agreement between the British and Turkish Governments 
respecting Prisoners of War and Civilians, executed at Bern on 28 December 1917; 
the Agreement between France and Germany concerning Prisoners of War, exe- 
cuted at Bern on 26 April 1918; and the Agreement between the United States of 
America and Germany concerning Prisoners of War, Sanitary Personnel, and 
Civilians, executed at Bern on 11 November 1918. 

40 Once again the momentum for improvement provided by international jurists 
should not be overlooked or underestimated. See, e.g., Phillimore & Bellot 47; and 
Phillimore, Suggestions 25. Similarly, the "Final Report of the Treatment of 
Prisoners of War Committee," 30 I.L.A. Rep. 236 (1921), contained a set of "Pro- 
posed International Regulations for the Treatment of Prisoners of War." 

41 The Geneva Convention Relative to the Treatment of Prisoners of War of 
July 27, 1929, herein referred to as "the 1929 Convention." 

42 See note 2 supra. 

43 See note 3 supra. 



10 

war had been omitted, 44 and very quickly after the end of hostilities 
the ICRC succeeded in securing the convening of another Diplomatic 
Conference in Geneva. This Conference drafted a new prisoner-of-war 
convention 45 with many comparatively novel provisions directed at fill- 
ing the voids which World War II had exposed in the then-existing 
law. This 1949 Convention has now been ratified or adhered to by 143 
nations. 46 It is with the application of its provisions — intended, actual, 
and to be expected — that the discussion which follows will be con- 
cerned. 

Writing in 1886, a noted American military lawyer, William Win- 
throp, said : 

Modern sentiment and usage have induced in the practice of 
war few changes so marked as that which affects the status of 
prisoners of war. 47 
While that statement was undoubtedly true in 1886 — and is still true 
when the treatment of prisoners of war today is compared with that 
which they received a number of centuries ago — the experiences of 
World War II and those after it make the situation far less roseate 
than when Winthrop wrote. As has been said: 

A comparison between the conditions under which prisoners 
were held captive during the Napoleonic wars and those obtain- 
ing in Germany, Japan and Russia during the late war [World 
War II] reveals a progressive change for the worse, which runs 
exactly parallel to the progress of dictatorship from Napoleon, 
through Kaiser Wilhelm to Hitler and Stalin. 48 



44 It should not be assumed that the 1929 Convention was completely without 
value. As the late Josef Kunz, an eminent scholar in this field, said: "[T]he fact 
that millions of prisoners of war from all camps, notwithstanding the holocaust, 
did return, is due exclusively to the observance of the Geneva Prisoners of War 
Convention. . . ." Kunz, Chaotic Status 37, 45. The American Red Cross attributed 
the fact of the survival of 99 percent of the American prisoners of war held by 
Germany during World War II to compliance with the 1929 Convention. New York 
Times, 2 June 1945, at 8, col. 6. Conversely, it may validly be assumed that millions 
of Russian prisoners of war held by the Germans, Germans held by the Russians, 
and Allied prisoners of war held by the Japanese did not return because the 1929 
Convention was not technically applicable and was not applied. 

45 The Geneva Convention Relative to the Treatment of Prisoners of War of 
August 12, 19If9, Appendix A. 

46 For a complete list of ratifications and adherences up to 1 June 1977, see 
Appendix B. 

47 Winthrop, Military Law 1228. To the same effect, see British Manual para. 
122. Spaight called prisoners of war "spoilt darlings." Spaight, War Rights on 
Land 265. Thirty-six years and two World Wars later he was more realistic. 
Spaight, Air Power, Ch. XV, passim. 

48 Laws, Prisoners of War 94. A similar pessimism is found in Freeman, Recueil 
309, where the author says: "Considering the experience of United Nations troops 
in the Korean campaign, an excess of optimism about such matters [application 
of the Convention] is hardly justified should the inferno of war be unleashed again." 



11 

The extent to which there will be compliance with the provisions 
for the protection of prisoners of war contained in the 1949 Geneva 
Prisoner-of-War Convention still largely remains to be seen. Unfor- 
tunately, very little that has occurred in this area during the quarter 
century since its drafting augurs well for the future. 

C. APPLICABILITY 

The first question which arises with respect to any treaty, and which 
is very much present in the case of the 1949 Geneva Convention is, 
when and under what circumstances is it to be applied? 

Under Article 1 of the Third Hague Convention of 1907 hostilities 
are instituted by a "reasoned declaration of war or [of] an ultimatum 
with conditional declaration of war" ; and under Article 2 of that 
Convention the belligerents have the duty to notify neutrals of the 
existence of a state of war. Of course, were those provisions uniformly 
complied with by States, the subject under discussion would cause 
few difficulties, as there would never be any question as to the existence 
of a legal state of war and of the consequent applicability of the 
1949 Geneva Convention. Unfortunately, more often than not, the 
above-cited provisions of the Third Hague Convention of 1907 have 
been honored in the breach. In 1914, just seven years after they had 
become a part of international legislation, Germany attacked Belgium 
without a prior declaration of war and started a policy which has 
been followed all too frequently since that time. 

Despite the experiences of World War I, the subsequently drafted 
1929 Geneva Prisoner-of-War Convention did not contain a provision 
specifying the conditions under which it was to become applicable. It 
was apparently believed that in future armed conflicts there would be 
compliance with the provisions of the Third Hague Convention of 
1907, and that there would therefore be no question concerning the 
applicability of the 1929 Convention. Events did not bear out this 
expectation. Thus, during World War II a number of Powers found 
it profitable not to make a formal declaration of war before embark- 
ing on hostilities. The German attack on Poland in 1939, the Soviet 
attack on Finland that same year, and the Japanese attacks on the 
United States and the United Kingdom in 1941 are but a few of the 
many well-known instances of the commencement of hostilities during 
World War II without a prior declaration of war. 49 In addition, Pow- 
ers have denied the existence of a state of war and, therefore, the 
applicability of the law of war protecting prisoners of war, by con- 



49 2 Lauterpacht-Oppenheim 292-93. But there were a number of cases of com- 
pliance with the provisions of the Third Hague Convention of 1907 during both 
World War I (ibid., at 294 n.2) and World War II (ibid., at 295 n.3). Italy had 
signed this Convention, but had never ratified it. Nevertheless, Italy did formally 
declare war on France in June 1940 before commencing hostilities. 



12 

testing the legitimacy of the enemy government in cases in which a 
sovereign State temporarily disappeared because of capitulation, oc- 
cupation, or annexation, or a combination of these, even though its 
allies continued to fight. At the very opening phase of World War II 
Poland was overrun and dismembered, part of its territory going to 
Nazi Germany and the remainder to the Soviet Union. Thereafter the 
German Government refused to consider that members of the Polish 
armed forces who had been captured during the course of hostilities 
retained the status of prisoners of war. 50 Similarly, Germany refused 
to recognize the right of any government to speak for prisoners of 
war who, before the respective capitulations and military occupa- 
tions, had served in the armed forces of Belgium, the Netherlands, 
Yugoslavia, etc. ; and it took this position whether or not there was 
a government-in-exile in existence and functioning. 51 In 1940 France 
agreed to an armistice with Germany (and to another with Italy) 
under which a large part of its territory remained occupied while 
the remainder was technically unoccupied and self-governing ; and it 
ceased to be a belligerent. Thereafter, while active hostilities contin- 
ued with Germany and Italy on one side and France's former allies 
(principally the United Kingdom and the Commonwealth countries) 
on the other, the German Government took the position that the mem- 
bers of the French armed forces who had been captured during the 
hostilities were no longer entitled to prisoner-or-war status, their 
rights thereafter being subject to negotiations between Nazi Germany 
and the Vichy French Government. 52 Finally, it had been found ad- 
vantageous on occasion to deny the existence of a state of war in a 
particular case by the use of subterfuge or perversion of the facts. 
Thus, the Sino-Japanese conflict, which dated at least from the Japa- 
nese attack at the Marco Polo Bridge in 1937 and which lasted until 
the end of World War II in 1945, was designated by the Japanese as 
an "incident" which, they claimed, did not bring the law of war — 
including that relating to prisoners of war — into effect. This estab- 
lished a pattern by which international armed conflict was termed 
an "incident," a "police action," a "police operation," etc., 53 thereby 



60 2 ICRC Analysis 5. 

31 Bastid, Droit des gens 334; 1 ICRC Report, 35-36, 189-90; Olgiati, Croix 
Rouge 705. According to one author, Germany took the position that prisoners of 
war from Poland and Yugoslavia could not, after the capitulations of those coun- 
tries, continue to be considered as prisoners of war because "their respective States 
having ceased to exist, the position of Power of Origin of these captives belonged 
henceforward to the Reich." Wilhelm, Status 10-11, 35 R.I.C.R. 525. 

52 1 ICRC Report, 546-47. The so-called Scapini Mission appointed by the Vichy 
Government replaced the Protecting Power for French prisoners of war held by 
the Germans after the 1940 Franco-German armistice agreement. See Pictet, 
Recueil 87-88. 

MIM.T.F.E. 1003 & 1008; 1969 Reaffirmation 94. 



13 

purporting to establish a base upon which to deny the applicability 
in a specific conflict of the law of war in general and the law relating 
to prisoners of war in particular. 54 

Could a country legitimately claim that there was no war, and hence 
that the Prisoner-of-War Convention was not applicable, because hos- 
tilities had not been preceded by a formal declaration of war? Could it 
deny the applicability of the Prisoner-of-War Convention by giving 
some name other than "war" to the armed conflict in which it was 
concededly engaged? Where a country had been overrun and its ter- 
ritory completely occupied by its enemies, could the latter claim that 
the occupied country had ceased to exist as a nation, that a state of 
war no longer existed between occupier and occupied, and that indi- 
viduals captured during the hostilities while serving in the armed 
forces of the occupied country were no longer entitled to prisoner-of- 
war status? Would the answer to this latter question be different if 
the allies of the occupied country were still actively at war with the 
occupier and if they were, perhaps, furnishing facilities on their soil 
for a government-in-exile and an armed force of the occupied coun- 
try? What if only part of the territory of a country had been occupied 
but it had signed an armistice with its occupier and was no longer 
an active belligerent? As we have seen, all of these situations had 
occurred during World War II. All of them could occur again in any 
future war. All of them urgently required that an agreed solution be 
reached in advance of the event. The 1946 Preliminary Red Cross 
Conference recommended that the 1929 Convention be amended to in- 
clude a provision making it applicable "from the moment hostilities 
have actually broken out, even if no declaration of war has been made 
and whatever the form that such armed intervention may take." 55 The 
Government Experts who met the following year concurred in the 
need for a provision of this nature, redrafting it to make the Con- 
vention applicable "at the outbreak of any armed conflict, whether 
the latter has, or has not[,] been recognised as a state of war by the 
parties concerned." 56 Based upon the suggestions it had received, the 
ICRC drafted a new provision 57 which was approved by the Interna- 
tional Red Cross Conference at Stockholm in 1948 r,s and was adopted 
by the Diplomatic Conference in Geneva in 1949™ with only minor 
editorial changes. 

The first paragraph of Article 2 of the Convention now provides : 
The present Convention shall apply to all cases of declared war 

or of any other armed conflict which may arise between two or 



5-* I.M.T.F.E. 1009 & 1209. 

55 1946 Preliminary Conference 15 & 70. 

M 1947 GE Report 103. 

~ )7 Article 2, Draft Revised Conventions 52. 

58 Article 2, Revised Draft Conventions 51. 

59 1 Final Record 243. 



14 

more of the High Contracting Parties, even if the state of war 

is not recognized by one of them. 60 
The foregoing provisions appear to be plain and unambiguous. They 
are among those provisions of the Convention which have been given 
both uniform interpretation and general approval by the commenta- 
tors. 01 Nevertheless, they have been less than fully successful in secur- 
ing the application of the Convention even in situations which appear 
to fall directly within their ambit. 

Clearly, the quoted portion of Article 2 is an attempt to cover two 
situations in such broad terms as to include all possible contingencies : 

(1) "Cases of declared war": This is the classical situation, the 
armed connict wnich is instituted in compliance with the provisions 
of the Third Hague Convention of 1907 discussed above. It presents 
no particular problems. The number of cases which will fall within 
its terms is comparatively negligible. Apart from the obvious reluct- 
ance of a number of nations to declare war formally, they are now 
confronted not only with the prohibitions of the United Nations Char- 
ter but also with the general desire to avoid any use of the term 
"war." 62 

(2) "Any other armed, conflict which may arise": The terminology 
selected here was intended as a catchall, to include every type of hos- 



00 This article is one of the "Common Articles" so called because they appear 
in identical form, mutatis mutandis, in all four of the 1949 Geneva Conventions 
for the Protection of War Victims. 

<n See Stone, Legal Controls 313 n.85, where the author states: "So Art. 2, para. 
1, of the revised Prisoners of War Convention, 1949, declaring its provisions ap- 
plicable not only to declared war but also to "any other armed conflict . . . even if 
the state of war is not recognised" by a belligerent Contracting Party, is a wel- 
come recognition of the need to place the point beyond doubt." And in Pictet, Com- 
mentary 22-23, the following appears: "By its general character, this paragraph 
deprives belligerents, in advance, of the pretexts they might in theory put forward 
for evading their obligations. There is no need for a formal declaration of war, or 
for the recognition of the existence of a state of war, as preliminaries to the appli- 
cation of the Convention. The occurrence of de facto hostilities is sufficient. . . . 
Any difference arising between two States and leading to the intervention of mem- 
bers of the armed forces is an armed conflict within the meaning of Article 2, even 
if one of the Parties denies the existence of a state of war." And, finally, in Soviet 
International Law 420, this statement is made: "The absence of a formal declara- 
tion of war does not deprive hostilities, which have in fact begun, of the character 
of war from the point of view of the need to observe its laws and customs. The 
Geneva Conventions of 1949 require that their signatories apply these Conventions, 
which are a component part of the laws and customs of war, in the event of a dec- 
laration of war or in any armed conflict, even if one of the parties to the conflict 
does not recognise the existence of a state of war." 

62 The 1969 Reaffirmation states (at 11) : "By avoiding the words 'law of war', 
the ICRC is also desirous to take account of the deep aspiration of the peoples to 
see peace installed and the disputes between human communities settled by pacific 
means." It is extremely doubtful that diction alone can change human nature. 
Fortunately, there has so far been no attempt to substitute the term "prisoner of 
armed conflict" for "prisoner of war"! 



15 

tility which might occur without being "declared war." The words 
selected were certainly broad enough to accomplish the desired result, 
viz., that the Convention should be applicable "on the outbreak of de 
facto hostilities, even if war has not been previously declared, and 
irrespective of the nature of the armed conflict." 63 A resolution adopt- 
ed by the World Veterans Federation in 1970 demonstrates the public 
understanding of the interpretation to be given to this provision. That 
resolution recalls "that the [1949 Geneva] Conventions apply to armed 
conflict of any nature . . . without regard to how that conflict may be 
characterized." 64 (Emphasis in original.) The ICRC has been equally 
comprehensive in its interpretation of this provision. The documents 
prepared by it for the use of the 1972 Conference of Government Ex- 
perts state: 

. . . There is no need for a formal declaration of war or for rec- 
ognition of the existence of a state of belligerency for the appli- 
cation of the Conventions. The occurrence of de facto hostilities 
is sufficient. Thus any disagreement arising between two States 
and leading to the intervention of members of the armed forces 
is an armed conflict within the meaning of Article 2 common to 
the Conventions, even if one of the Parties to the conflict denies 
the existence of a state of belligerency. 65 

In one of the few cases concerning the 1949 Convention to reach 
the courts, a major issue was the applicability of the 1949 Prisoner- 
of-War Convention in hostilities resulting from the "military con- 
frontation" between Malaysia and Indonesia (1963-66). The Privy 
Council said: 

The trials of the accused were conducted on the assumption, 
which their lordships do not call in question, that there was an 
armed conflict between Malaysia and Indonesia bringing the 
[prisoner-of-war] Convention into operation. Article 2 applies the 
Convention not only to cases of declared war but to 'any other 
armed conflict' which may arise between two or more of the High 
Contracting Parties even if the state of war is not recognised by 
one of them. The existence of such a state of armed conflict was 
something of which the courts in Malaysia could properly take 



r,; * Pictet, New Geneva Conventions 468. The author goes on to state: "It is in- 
admissible that a state should be entitled to disregard treaty stipulations simply 
by opening hostilities without previous notification to the adversary, or by giving 
such proceedings any other name." 

64 U.N., Human Rights, A/8370, para. 160. 

65 1972 Commentary, part one, at 9. This was the position taken by the Indian 
government in 1963 when it contended that the refusal of the Peoples Republic of 
China to allow the ICRC to visit Indian prisoners of war held in China violated 
"the provisions of the Geneva Convention [which] apply to such situations even 
if a state of war [in the legal sense] does not exist." 2 Cohen & Chiu, People's 
China 1573-74. 



16 

judicial notice, or if in doubt (which does not appear to have been 
the case) on which they could obtain a statement from the Ex- 
ecutive. 66 

Despite the foregoing, in at least two instances — one unofficial and 
one official — the applicability of the Convention has been challenged 
or denied because there was no "state of war" or no "declaration of 
war." Thus, a leading scholar in the field of international law in the 
People's Republic of China apparently went out of his way to question 
the applicability of the Convention to certain American airmen shot 
down during the hostilities in Korea (1950-53) because "no state of 
war exists between China and the U.S." 67 And of even more impor- 
tance was the refusal of the Democratic Republic of Vietnam (DRV) 
to apply the Convention to American airmen shot down while flying 
combat missions over that country (c. 1965-73), on the ground that 
there had been no declaration of war. 68 



66 Public Prosecutor v. Koi, [1968] A.C. 853-54. 

67 The full story of this incident, set forth by Professor Cohen in his contribu- 
tion on the People's Republic of China to what was originally the Harbridge House 
study on prisoners of war, is worthy of quotation: "In the 1954 dispute over the 
post-Korean-armistice conviction of eleven United States Air Force personnel for 
espionage, another leading Chinese scholar of the day, Ch'en T'i-ch'iang, used 
language that unnecessarily suggested a more restrictive view of the applicability 
of the GPW Convention. The United States had argued that prior to the armistice 
the fliers had been shot down either over the 'recognized combat zone in Korea or 
over international waters.' Instead of simply limiting his argument to the official 
Chinese position that the fliers had been shot down deep in Chinese territory after 
secretly entering for purposes of espionage rather than combat, Ch'en ambiguously 
stated : 

Only captured members of the armed forces of a belligerent can be considered 
prisoners of war by the captor side. No state of war exists between China and 
the U.S. U.S. spies who have intruded into China for espionage purposes are 
not prisoners of war. 
Ch'en's remarks were only the murky dicta of a single publicist, to be sure, but 
they suggested the possibility that the PRC could some day choose to read the 
phrase 'any other armed conflict' in article 2 restrictively, as North Vietnam ap- 
pears to have done, in spite of the more conventional position voiced by Chou 
Keng-sheng vis-a-vis India." Miller, The Law of War 239-40. Technically the state- 
ment by Ch'en was correct; but he made a poor choice of words. In the absence of 
armed conflict between two States, a national of one who illegally intrudes into the 
territory of the other does not become a prisoner of war. The situation of which 
Ch'en writes is exactly the same as the Powers case in the Soviet Union, except that 
in China the individuals who illegally intruded were undeniably members of an 
armed force. (This assumes, of course, the validity of the Chinese factual position.) 

68 A news article from Cairo which appeared in the New York Times, 12 Febru- 
ary 1966, at 12, col. 3, stated: 

The sources quoted the [North Vietnamese] Ambassador as having rejected 
the American contention that United States airmen captured in attacks on 
North Vietnam should be treated as prisoners of war under the terms of the 
Geneva conventions. 



17 

It is apparent, unfortunately, that no matter how clear and unam- 
biguous the provisions of the Convention in this respect may conced- 
edly be, some Parties will continue to insist that, and to find reasons 
why, the hostilities in which they are engaged do not come within 
the purview of the provisions of the first paragraph of Article 2 ; and 
they will frequently, absent strong pressure from friendly Parties, 
for this reason refuse to apply the Convention for the protection of 
prisoners of war captured by them during the course of international 
armed conflict. There appears to be wide agreement that what is need- 
ed in this field is not new law, but some method of ensuring the ap- 
plication of, and compliance with, existing law — the 1949 Convention."" 
At the 1971 Conference of Government Experts several of the par- 
ticipants sought a solution to the problem created where one of the 
parties to an international armed conflict denied the applicability of 
the Convention. 70 The solutions offered there were, in general, con- 
cerned with methods of ensuring the presence of a Protecting Power. 71 
While there can be no question of the importance of the Protecting 
Power in ensuring the application of (and compliance with) the pro- 
visions of the Convention, this does not solve the problem which exists 
when one party to an international armed conflict insists that there are 
no hostilities within the meaning of Article 2 of the Convention and 
that, therefore, there is no basis for designating a Protecting Power. 

At the 1949 Diplomatic Conference two proposals were made which 
can be related to this problem. The Greek representative suggested 
that the existence of a state of belligerency (which would, of course, 
unquestionably bring the law of armed conflict into effect) should be 



He was reported to have told influential Egyptians that this was impossible 
"because this is a case where no war has been declared" by either country. 
Another article published five months later (New York Times, 12 July 1966, at 
7, col. 5) said: "The Tanyug dispatch, dated Pnompenh, Cambodia, said that North 
Vietnam 'does not consider these United States citizens as prisoners of war for it 
has not declared war on the United States.' " Direct evidence of the effect of the 
foregoing may be found in the words of one of the American prisoners of war re- 
patriated during the hostilities. He stated : "Any attempt on our part to bring up 
the fact that we were prisoners of war . . . resulted in it being very forcibly brought 
to our attention that we were not prisoners but criminals, because our country had 
not declared war, and had to answer for this." Overly, "Held Captive in Hanoi," 
Air Force & Space Digest, November 1970, at 86, 90. For the ICRC position that 
the American prisoners of war held in North Vietnam were entitled to the protec- 
tion of the Convention, see AEI, Problem 24. 

8* U.N., Human Rights, A/1120: Reply of India, par. 2, at 77-78; Reply of the 
United States, para. 2, at 91. The ICRC subsequently pointed out that the problem 
was not novel and it listed 10 private organizations which had put forward initia- 
tives in this regard. 1971 GE Documentation, II, at 22. 

™ 1971 GE Report, paras. 534 & 537. 
71 Ibid., para. 538. 



18 

decided by the Security Council of the United Nations. 7 - A French 
proposal, which was actually concerned with the problem of a substi- 
tute for the Protecting Power, 73 would have established on a perma- 
nent basis, a "High International Committee for the Protection of 
Humanity," consisting of 30 members elected by the Parties to the 
Conventions from nominations made by the Parties, by the Hague "In- 
ternational [Permanent] Court of Arbitration" and by the "Interna- 
tional Red Cross Standing Committee." Nominations were to be made 
from 

amongst persons of high standing, without distinction of nation- 
ality, known for their moral authority, their spiritual and intel- 
lectual independence and the services they have rendered to 
humanity — 

In particular, they may be selected from amongst persons dis- 
tinguished in the political, religious, scientific and legal domains, 
and amongst winners of the Nobel Peace Prize — 74 
While this proposal was not incorporated into the conventions, it was 
the subject of a resolution adopted by the Diplomatic Conference 
recommending that consideration be given as soon as possible to the 
advisability of setting up an international body to perform the func- 
tions of a Protecting Power in the absence of such a Power. 75 

These two proposals are mentioned here because they suggest al- 
ternative approaches to the attempt to solve the problem of how to 
ensure application of the 1949 Conventions in international armed 
conflict: one, by the use of an established and continuing political 
body ; the other, by the use of a new body created specifically for the 
purpose and which is made as neutral and apolitical as it is possible 
to do in these days of hypernationalism. 

The suggested use of the Security Council (or, indeed, of any poli- 
tical body) is not considered to be a feasible solution. That body is 
composed of representatives of States, voting on the basis of decisions 
reached in Foreign Offices — decisions which are, in turn, made on the 
basis of national self-interest and political expediency, and which are 
not necessarily consonant with the facts. It is inconceivable, for ex- 
ample, that the Security Council would ever have reached a decision, 
over the opposition of North Vietnam (and, of more importance, of 
the Soviet Union and, toward the end, of the People's Republic of Chi- 
na), that the situation in Vietnam demanded the application of the 



7 - 2B Final Record 11 & 16. Further amplification of the proposal, which was 
clearly required, was not forthcoming" and its adoption was not pressed. 
7:{ For a discussion of this problem, see pp. 269-275 infra. 

74 3 Final Record Annex. 21, at 30. 

75 Resolution 2, 1 Final Record 361. Some months after the signing of the Con- 
vention in 1949 the French Government queried the signatory Governments with 
respect to the possible implementation of the Resolution. The Governments so con- 
sulted displayed a complete lack of interest. 1971 GE Documentation, II, at 21. 



19 

humanitarian conventions which govern the law of international armed 
conflict. 76 

On the other hand, it is believed that a true and effective solution to 
this problem could be attained by a Protocol to the four 1949 Conven- 
tions assigning the power to make a determination as to the existence 
of a state of international armed conflict, thereby automatically bring- 
ing the Conventions into effect, to a preselected international commis- 
sion; by making the decision reached by that commission as to the 
existence of a state of international armed conflict binding not only 
on the States directly involved but also on all other Parties to the 
Protocol and Conventions; and by providing for the automatic im- 
position of some type of workable sanctions (such as a ban on the 
supplying of arms) whenever the commission so created determines 
that its decision is not being respected by a State party to the inter- 
national armed conflict in that such State has, despite the interna- 
tionally sponsored decision as to the existence of an international 
armed conflict which brings the law of armed conflict into effect, con- 
tinued to deny the applicability of such law. Such a specially consti- 
tuted commission of perhaps 25 private individuals, each of whom is 
of sufficient personal international stature to be able to rise above 
the politics of his or her own country, each of whom would act as 
an individual and as his or her personal moral and ethical principles 
dictated, detached and unaffected by Foreign Office instructions, could 
well constitute an acceptable, effective international body. 77 The pro- 
visions for the selection of the members of such a commission would 
be sufficiently restrictive to ensure the choice of the type of individual 
described, without regard to nationality, race, religion, color, or geo- 
graphical distribution. It would begin to operate as soon as the con- 



76 In addition, it might be noted that the Security Council undoubtedly already 
has the power to make such a decision; that it has, heretofore, in effect made such 
a decision, but always in the context of a call for the cessation of armed conflict so 
found to exist (e.g., S.C. Res. 233, 22 U.N. SCOR, Resolutions and Decisions of the 
Security Council 1967, at 2, U.N. Doc. S/INF/22 Rev.2 (1968), adopted 6 June 
1967, in which the Security Council stated its concern "at the outbreak of fighting" 
in the Middle East and called for "a cessation of all military activities in the 
area"; and S.C. Res. 237, 22 id. at 5, adopted 14 June 1967, in which it recom- 
mended "scrupulous respect of the humanitarian principles governing the treat- 
ment of prisoners of war"), and that it has never exercised its power in the con- 
text of the proposal under discussion because to do so would be an admission of its 
inability to eliminate completely the breach of the peace involved. 

77 While it is true that States refuse to allow questions relating to their "national 
security" to be decided by international bodies (witness the problems encountered 
in this respect by the International Court of Justice), it would be difficult for a 
State to put forward the contention in time of peace that the delegation to a neutral 
international body of the right to determine when a situation has arisen in which 
that State must apply humanitarian law would be detrimental to its national secu- 
rity. (It must be borne in mind that we are dealing here solely with international 
armed conflicts.) 



20 

stitutive body, consisting of all of the Parties to the Protocol, had 
made the initial selections, and would be a permanent body, preferably 
self-perpetuating through a process of co-option. 78 Any Party to the 
Protocol, whether or not itself involved in an international armed con- 
flict, could, at any time, request a determination by the commission 
as to whether the then-existing relationship between two or more 
States was such as to bring the Conventions into effect; the States 
involved would be invited to present any facts or arguments they de- 
sired but would not otherwise participate in the decisionmaking proc- 
ess; 79 an affirmative decision would immediately be binding not only 
upon the States involved in the armed conflict, but on all of the other 
Parties to the Protocol ; 80 and a subsequent finding by this commission 
that one or more of the Parties involved in the armed conflict was not 
complying with the provisions of the applicable humanitarian law — 
including the law relating to prisoners of war — would automatically, 
and without further action of any kind, require previously prescribed 
action on the part of all of the other Parties to the Protocol not in- 
volved in the armed conflict. 81 

This proposed solution to the problem of establishing a method 
whereby States will not be able to deny the applicability of the 1949 
Convention in international armed conflict may appear impractical, 
given the current international climate. However, upon reflection this 



78 To gain support at the outset and to ensure complete impartiality, it would 
probably be necessary to deny this body jurisdiction over fact situations existing 
at the time of its creation. 

79 The United Nations General Assembly has, on a number of occasions, called 
upon its members "to make effective use of the existing methods of fact-finding" 
[e.g., G.A. Res 2329, 22 U.N. GAOR, Supp. 16, at 84, U.N. Doc. A/6716 (1968)]. 
The basic objective of these resolutions has been to encourage the use of fact-find- 
ing bodies in the event of disputes. The present proposal would, in effect, merely 
create a new specialized fact-finding body and provide for certain results to flow 
automatically if specified facts are found. It is a variation and expansion of the 
idea of the ad hoc Commission of Inquiry originally provided for by the First 
Hague Convention of 1899 and used for the first time in the Dogger Bank Incident 
(Scott, Hague Court Rep. 403) . 

80 This is really provided for in Article I of the Convention. See pp. 26-27 infra. 
The decision would have no legal effect except to require the application of the 
humanitarian rules contained in the 1949 Geneva Conventions. It would not be a 
determination of the existence of a legal state of war. 

81 The present author first made this proposal in March 1970 in the Working 
Paper for the Fourteenth Hammarskjold Forum. See Carey (ed.), When Battle 
Rages, How Can Law Protect? 8-11 (hereinafter Levie, Working Paper). Subse- 
quently, a somewhat similar suggestion was made in the context of Article 3 deal- 
ing with internal armed conflict. U.N., Human Rights, A/8052, at paras. 159 — 61; 
and 1971 GE Report, paras. 192-218. (There does not appear to be any reason why 
the same body could be empowered to act in both areas, even by different groups 
of States, if this were desired.) Another writer in this field has also since made a 
similar suggestion. Bindschedler 56. See also the proposal made to the 1974 Diplo- 
matic Conference in para. 8(b) of the 1973 NGO Memorandum. 



21 

reaction may become somewhat less valid. Each and every one of the 
143 States that have become Parties to the Conventions considers that, 
should it become involved in international armed conflict, it would be 
the participant fighting a just war — and that the application of hu- 
manitarian provisions of the law of war would be in its favor and 
against the aggressor with whom it would be engaged in international 
armed conflict. Why, then, should it not support a proposal which will 
ultimately be of benefit to it should it be forced to engage in interna- 
tional armed conflict? Moreover, to what will it have agreed? Merely 
that a neutral, internationally created body, which it helped to create, 
may determine that a situation in which the State may unexpectedly 
find itself at some future time calls for the application of the humani- 
tarian law of international armed conflict. What would that mean to it? 
Only that it could not kill, or otherwise maltreat, protected persons 
such as the sick and wounded, prisoners of war, and civilian noncom- 
batants, and that it must meet certain minimum standards in its 
treatment of these individuals. Can any State advance the argument 
that it refuses to ratify such an international agreement because it 
does not wish to have its "national security" jeopardized by having 
its sovereign power of action limited in these respects, that it wishes 
to retain an unfettered ability to kill and maltreat these individuals at 
will? Moreover, once an international convention covering the fore- 
going proposal has been drafted and is presented for signature and 
ratification, .the moral and humanitarian pressures to bring about its 
legal acceptance by individual States would be tremendous and there 
would be an excellent possibility of its general acceptance. 82 While 
certain States that have adopted obsolete attitudes magnifying na- 
tional sovereignty might well strongly oppose such a proposal, it is 
predictable that they would participate, albeit reluctantly, in any dip- 
lomatic conference convened to draft such a Protocol and would even- 



82 Certainly, the 143 ratifications and accessions to the 1949 Geneva Conventions, 
which were drafted before many of the acceding States were even in existence as 
members of the international community, were not obtained merely because of an 
overwhelming urge on the part of nations to be bound by these humanitarian rules 
in the event they became involved in international armed conflict. They were ob- 
tained because of moral and humanitarian pressures and because few nations were 
willing to be pointed at as not having accepted these great expressions of humani- 
tarian aspirations. (Pressure of this same type was brought on the United States 
because of its failure to ratify the 1925 Geneva Gas Protocol.) At least one writer 
does not think that the proposal would be acceptable to States. Bond, Proposed 
Revisions 258. However, the final session of the Diplomatic Conference which 
adopted the 1977 Protocol I (see text, pp. 91-01) included therein an Article 90 en- 
titled "International Fact-Finding Commission." This Article adopts many of the 
ideas set forth in the text and previously urged elsewhere insofar as inquiring 
into alleged grave and serious breaches of the 1949 Convention and the 1977 
Protocol are concerned. (For a more detailed discussion of Article 90, see pp. 90-1). 



22 

tually, rather than risk international opprobrium, become parties to 
it. It is believed that in this era of almost ceaseless armed conflict, 83 
the time is past when States may argue ''national sovereignty" and 
"national security" as excuses for refusing to participate in the crea- 
tion of an international institution the sole function of which will be 
to eliminate excuses for refusing to recognize the existence of inter- 
national armed conflict, with the resultant applicability of certain spe- 
cific humanitarian laws. 

There is one patent ambiguity in the quoted provisions of the first 
paragraph of Article 2 which requires mention. It will have been noted 
that the paragraph concludes with the phrase "even if the state of 
war is not recognized by one of them." What is the legal situation if 
a state of war is not recognized by two, or several, of the parties to 
the armed conflict? The legislative history of the Article is not helpful. 
Apparently, the drafters did not visualize the possibility that among 
the High Contracting Parties engaged in international armed conflict 
there might be more than one State that refused to recognize that the 
situation was such as to bring the matter within the provisions of the 
Convention, thereby requiring the applicability of its humanitarian 
provisions. Obviously, the literal wording of the Article does not cover 
all of the possible contingencies, including, for example, the situation 
which existed during the armed conflict in Vietnam where neither the 
Democratic Republic of Vietnam nor the United States, for different 
reasons, recognized the existence of a legal state of war. 84 

This problem was perceived within a short time after the 1949 Dip- 
lomatic Conference had completed its work. In 1952 Lauterpacht point- 
ed it out and said : "The intention was probably to say by 'one or both 
of them.' This, it appears, is the correct interpretation of the Con- 
vention." 85 Certainly, his interpretation would seem to be fully justified 
— although it probably does not go far enough. We are dealing with a 
humanitarian convention. It should be liberally construed in order to 



*'•* Between 1945 and 1968 there were approximately 130 armed conflicts, of which 
well over 50 percent had international implications. SIPRI, Yearbook of World 
Armaments and Disarmament, 1968/1969, Tables 4A.1 & 4A.2 at 366-73. 

84 The Republic of Vietnam (South Vietnam) did, at least for some purposes, 
recognize the existence of a legal state of war. Ordinance of June 24, 1965, Prom- 
ulgating the State of War throughout the Republic of Vietnam. See Prugh, Law at 
War 62. 

85 Lauterpacht-Oppenheim 369 n.6. For agreement with this view see Pictet, 
Commentary 23, and Draper, Recueil 73. Two years later the Diplomatic Confer- 
ence that drafted the 1954 Hague Convention for the Protection of Cultural Prop- 
erty in the Event of Armed Conflict changed the wording of the cognate provision 
(Article 18(1) ) of that Convention to read "even if the state of war is not recog- 
nized by one or more of them." (Emphasis added.) One author believes that even 
this could be improved, and any remaining ambiguity removed, by using the phrase 
"par aucune d'entre elle" ("by any of them"). Meyrowitz, Les armes biologiques et 
le droit international 22 n.46. 



23 

give the maximum protection. It simply does not make sense to say- 
that if one of two parties to an international armed conflict (50 per- 
cent of those involved) denies the existence of a state of war the Con- 
vention is nevertheless applicable; but that if two of twenty parties 
to an international armed conflict (10 percent of those involved) make 
such a denial the Convention is inapplicable. The manifest purpose of 
the Convention was to afford humanitarian protection to individuals. 
Just as States may not make agreements derogatory of the protections 
so afforded, 86 they should not be permitted to offer an interpretation 
which will completely eliminate the applicability of the Convention in 
a situation to which it was unquestionably intended to be applicable. 87 
Moreover, the provision should be construed in such fashion that no 
matter how many participants take the position that a "state of war" 
does not exist, the actual fact of armed conflict will suffice to make the 
Convention applicable. If it is not so construed, it will have all of the 
pejorative aspects of the much condemned general participation clause 
— with the additional adverse factor that the decision that the Con- 
vention is not to be applied will be based not on the indisputable fact 
of the participation in the hostilities of a non-Party to the Convention, 
but on the mere unilateral, subjective whim of belligerents. 

Paragraph 2 of Article 2 makes the 1949 Convention applicable "to 
all cases of partial or total occupation of the territory of a High Con- 
tracting Party, even if the said occupation meets with no armed re- 
sistance." Once again this was an attempt to prevent a repetition of 
events which had occurred during World War II. Thus, when Poland 
was totally occupied and, in effect, dismembered by Germany and the 
Soviet Union in 1939, the position was taken by the German Govern- 
ment that inasmuch as there was no longer a Polish State, there was 
no longer a legal basis for a Protecting Power to protect Polish inter- 
ests — which would, of course, include the protection of the rights of 
members of the Polish armed forces previously taken as prisoners of 
war. 88 The German Government thereafter took a similar position with 
respect to Yugoslavia, the Free French, and Italy after 1943. 89 All of 
these States had been the subject of complete or partial military oc- 
cupation. However, the problems arising here, insofar as the 1949 
Convention is concerned, are really relative to the right of an individ- 
ual to continue to be entitled to prisoner-of-war status and to the 



80 See the discussion of Article 6 of the Convention, pp. 84-86 infra. 

87 One commentator states with, unfortunately, some justification, that "adhering 
parties are not bound to know the undisclosed intentions of the drafters of conven- 
tional language that is inconsistent with words actually used." Rubin, Status of 
Rebels 447. 

88 Bastid, Droit des gens 334. The author there correctly points out that, to a 
considerable extent, this same position was taken by the Allies after the German 
capitulation in 1945. 

89 Pictet, Recueil 87-88. See also 1 ICRC Report 35-36, 189-90. 



24 

position of the Protecting Power. It is believed that these problems are 
more properly included in the discussion of those specific areas. 90 

The third paragraph of Article 2 deals with the problem created 
when one of the belligerents in an international armed conflict is not 
a party to the Convention. It will be recalled that the Fourth Hague 
Convention of 1907 included among its provisions a general participa- 
tion clause. 91 The opposite approach was taken in the 1929 Convention, 
which provided that if one of the belligerents was not a party to it, 
"its provisions shall, nevertheless, remain binding as between the bel- 
ligerents who are parties thereto." 92 During World War II no bellig- 
erent denied the applicability of the 1929 Convention merely because 
of the fact that several of the belligerents, particularly the Soviet 
Union and Japan, were not parties thereto. The first sentence of the 
third paragraph of Article 2 is merely a rephrasing of the provision 
contained in its predecessor. It provides that even if "one of the Pow- 
ers in conflict ,,93 is not a party to the Convention, "the Powers who 
are parties thereto shall remain bound by it in their mutual relations." 
This provision should present no problems. However, the second sen- 
tence of the paragraph constitutes a somewhat new concept. In order 
to encourage belligerents to comply with the provisions of the Con- 
vention even if they are not Parties thereto, it provides that contract- 
ing parties shall "be bound by the Convention in relation to the said 
[nonparty] Power, if the latter accepts and applies the provisions 
thereof." This procedure probably derived from the, at times, success- 
ful efforts of the ICRC during World War II to persuade nonparty 
belligerents to comply with the 1929 Convention on a reciprocal basis. 94 
Thus, although there is a duty on parties engaged in international 
armed conflict to comply with the provisions of the Convention even 
in the face of noncompliance by an adversary which is a Party — reci- 
procity not being a requirement for this obligation 95 — it is a require- 
ment when a nonparty is involved in the international armed conflict 96 
inasmuch as the nonparty must both accept and apply the provisions 
of the Convention in order to create the right to expect compliance 



90 See pp. 66-68 infra, and 262-275 infra, respectively. 

91 See note 38 supra. 

92 Article 82. 

93 Once again it would have eliminated possible controversy had the provision 
been made to read "one or more of." See note 85 supra. 

94 1 ICRC Report, 189. For what was a less than successful effort in this regard, 
see ibid., 408-36. 

95 Pictet, Commentary 17-18. Concerning the problem of reciprocity, see pp. 
29-32 infra. 

96 Draper, Recueil 74. He points out that this situation occurred during the 1956 
Suez Conflict, at which time Egypt was already a Party and the United Kingdom 
was not. The latter made a declaration that it would accept and apply the Conven- 
tion. 



25 

on the part of the Party to the Convention. 97 

It might be asked why a Power would not elect to ratify or accede 
to the Convention, even while it is engaged in international armed con- 
flict, rather than to rely on its adversary's recognition that it has 
accepted and is applying the Convention. This was apparently fore- 
seen as a possibility by the draftsmen, for, while Article 138 (which 
deals with normal ratifications) and Article 140 (which deals with 
normal accessions) both provide for a six-month delay before becom- 
ing effective, Article 141 affirmatively provides that when interna- 
tional armed conflict as specified in Article 2 occurs, any ratification 
or accession then pending or thereafter made by a belligerent shall be 
given effect immediately. It may be assumed that this is the procedure 
that any State not a party to the Convention would follow if it became 
involved in international armed conflict. 98 

Some years ago a dispute arose with respect to the applicability of 
the Convention in cases involving the United Nations, the suggestion 
having been made that the law of international armed conflict, includ- 
ing the 1949 Convention, was binding on any State in conflict with a 
United Nations armed force, but was not binding on the latter. 99 This 
suggestion caused quite a furor for a time but there now appears to 
be general agreement that the law of international armed conflict, in- 
cluding the 1949 Convention, is applicable to both sides in any United 
Nations enforcement action. 100 This is substantially the position taken 
by the United Nations itself. 101 

To summarize, the provisions of Article 2 were intended to, and do, 
make the 1949 Convention applicable in the following: 

(1) All cases of war formally declared between two or more Par- 
ties; 

(2) All other cases of armed conflict between two or more Parties ; 

(3) All cases of armed conflict between two or more Parties no 
matter what designation such conflict may be given; 



97 This creates a strange situation. Parties to the Convention are bound to com- 
ply with its provisions vis-a-vis nonparties only on a reciprocal basis. By acceding 
to the Convention during the course of the international armed conflict instead of 
merely "accepting and applying" it, the former nonparty can create a legal obliga- 
tion on the part of the adversary party to comply with the provisions of the Con- 
vention even if the former nonparty does not, in fact ;omply. In other words, by 
becoming a Party to the Convention the former nonparty belligerent can eliminate 
the requirement of reciprocity on its part! 

08 Of course, in view of the number of States already Parties to the Convention 
(see Appendix B) , this problem is almost moot. 

""Should the Laws of War Apply to United Nations Enforcement Action?" 
1952 Proc. A.S.LL. 216, 217. 

100 50 Annuaire de VInstitut de Droit Internationa! 376 (II, 1963) ; 54 ibid. 449 & 
465 (II, 1971) ; Soviet International Law 407; 66 A.J.I.L. 465 (1972) ; Bothe, he 
droit de la guerre et les Nations Unies 187-207; Simmonds, Legal Problems 177-96. 

101 Seyersted, Ihiited Nations Forces 190-92. 



26 

(4) All cases of armed conflict between two or more Parties even 
if the existence of a legal state of war is not recognized, or is denied, 
by one or more of them ; 

(5) All cases of the occupation of a part or all of the territory of 
one Party by the armed forces of one or more other Parties, whether 
or not such occupation is preceded, accompanied, or followed by armed 
resistance ; 

(6) All cases of armed conflict between two or more Parties even 
if one Power, or more than one Power, to the armed conflict is not a 
Party; and 

(7) All cases of armed conflict involving a Power, or Powers, not 
a Party, on a reciprocal basis, if the Power, or Powers, not a Party, 
accepts and applies the provisions thereof. 

D. COMPLIANCE 

Parallel with the problem of applicability is the problem of compli- 
ance. If the international armed conflict is within the provisions of 
Article 2 of the Convention, what are the requirements for compliance 
and how is compliance assured and enforced? 102 

Article 82 of the 1929 Convention stated that "the provisions of the 
present Convention shall be respected by the High Contracting Parties 
in all circumstances.'' The 1949 Convention made two improvements 
in this stipulation. In the first place, the importance attached to this 
provision by the 1949 Diplomatic Conference (which followed the lead 
of the participants in the preliminary conferences convened by the 
ICRC) was demonstrated by its removal from a position near the end 
of the treaty to one of major prominence as the very first article of 
the 1949 Convention. In the second place, it now provides not only 
that the Parties "undertake to respect" the 1949 Convention "in all 
circumstances" 103 (the sole requirement of the 1929 Convention), but 
also that they "undertake ... to ensure respect for" the Convention. 
Thus, every Party to the Convention has explicitly accepted the obli- 
gation of "ensuring" that every other Party to the Convention com- 
plies with its provisions ; 104 and has implicitly accepted the obligation 



102 See Gass, Can the POW Convention Be Enforced? 27 JAG J. 248. 

103 "In all circumstances" can logically only mean under all of the circumstances 
set forth in Article 2. Pictet, Commentary 18. 

104 One of the proposals made at the 1971 Conference of Government Experts 
said: 

That there should be collective supervision and enforcement by all States 
Parties to the Geneva Conventions not engaged in the conflict, operating under 
the theory of collective responsibility implicit in Article 1 common to the 
Geneva Conventions of 1949. 
1971 GE Report 114, Proposal No. 15. (But see note 110 infra.) Another indica- 



27 

of soliciting and encouraging compliance by nonparties who are in- 
volved in international armed conflict. 

The importance of this new aspect of the Article cannot be over- 
stated. The change first appeared in the preliminary work done by the 
ICRC during the period between the end of World War II and the 
convening of the Diplomatic Conference in April 1949. 105 In explain- 
ing this proposed addition to the wording of the Article, the ICRC said : 
The ICRC believes it necessary to stress that if the system of 
protection of the Convention is to be effective, the High Contract- 
ing Parties cannot confine themselves to implementing the Con- 
vention. They must also do everything in their power to ensure 
that the humanitarian principles on which the Convention is 
founded shall be universally applied. 106 

It cannot be doubted that the moral pressure which could be applied 
to States engaged in international armed conflict, whether or not Par- 
ties to the Convention, by the many States which are Parties thereto 
and which are not involved in the particular conflict, would be a tre- 
mendous force for compliance — a force which would frequently be the 
determining factor in convincing a belligerent to decide to comply 
with the Convention in the international armed conflict in which it 
is then engaged. Unfortunately, experience since 1949 has demon- 
strated a strong reluctance on the part of Parties to the Convention 
to insist, or even to suggest, that Parties so engaged in international 
armed conflict have a duty to comply with its provisions. 107 This is 



tion of the generally broad interpretation which this obligation receives is the 

following': 

Thus the International Committee of the Red Cross . . . appears to have 
taken the position that, since the United Nations had not acceded to the Geneva 
Conventions, each contracting party to these Conventions would remain respon- 
sible for their application by any contingents they might provide for the 
United Nations, and even that they had a moral obligation to do what they 
could to ensure such application by other contingents, too. 

Seyersted, United Nations Forces 192. 

105 See, e.g., the draft convention submitted by the ICRC to the XVIIth Inter- 
national Red Cross Conference which met in Stockholm in August 1948 (Draft 
Revised Conventions 51) and the "Stockholm Draft" adopted by that Conference 
(Revised Draft Conventions 51). 

106 Draft Revised Conventions 5. Article 1(1) of the 1977 Protocol I is identically 
worded. 

107 The White Paper on the Application of the Geneva Conventions of 1949 to 
the French-Algerian Conflict, issued by the Algerian Office in New York in 1960, 
said (at 3) : 

In conclusion, we shall point to the need and responsibility of the signatories 
to the Geneva Conventions to use their good offices with the Government of 
France, to achieve its recognition of the obligation it has assumed "to respect 
and ensure respect" for the Geneva Conventions. 
Despite this clarion call for nonbelligerent Parties to take the action which they 
had pledged to take in becoming Parties, in the detailed and well-documented dis- 
cussion written by Dr. Bedjaoui concerning the attempts by the Provisional Gov- 



28 

particularly true with respect to neutral States, 108 but it is often true 
even as to allies. 109 Despite the clear and unambiguous provisions of 
the Convention, many States would very probably consider any such 
efforts as interference in the internal or domestic affairs of another 
sovereign State, even though compliance with the provisions of a 



ernment of Algeria to secure compliance by the French with, first, Article 3 of 
the 1949 Conventions and, later, the Conventions in toto, there is not a single word 
to indicate the intervention of any other Party seeking to ensure respect for the 
Conventions by the French Government. Bedjaoui, Law and the Algerian Revolu- 
tion 183-99; 207-20. Even the Government of the United Kingdom of Libya merely 
acted as a conduit between the Provisional Government of Algeria and Switzerland, 
the depositary. Ibid., 183 & 189. 

108 One of the preambular clauses of Res. XXIII, Human rights in armed con- 
flict, 12 May 1968, Final Act of the International Conference on Human Rights, 
U.N. Doc. A/CONF.32/41, at 18 (1968) stated: 

Noting that States parties to the Red Cross Geneva Conventions [sic] some- 
times fail to appreciate their responsibility to take steps to ensure the respect 
of these humanitarian rules in all circumstances by other States, even if they 
are not themselves directly involved in an armed conflict. 
While there were many private voices raised concerning the refusal of India for 
almost two years to comply with the specific release and repatriation provisions of 
the Convention after the December 1971 surrender by the Pakistani forces in East 
Pakistan (now Bangladesh), the official voices of Governments were conspicuous 
by their silence — or perhaps they were just too low in key to be heard, especially 
by India. During the course of the hostilities in Vietnam, some States found it pos- 
sible to condemn the United States and the Republic of Vietnam for alleged viola- 
tions of the Convention. However, this was probably only because of their animus 
due to the basic fact that the United States was involved in those hostilities. These 
same States made no effort whatsoever to seek to obtain compliance with the Con- 
vention by the Democratic Republic of Vietnam and by the Vietcong, despite their 
close relations with these two latter, both of which admittedly and publicly refused 
to comply with the Convention as a matter of official policy. 

109 Early in the United States involvement in Vietnam there was severe criticism 
of the United States because it appeared that no action was being taken by the 
latter while the armed forces of the Republic of Vietnam publicly violated the 
Convention. See, e.g., Massachusetts Political Action for Peace, What Are We Tied 
to in Vietnam? (1964). Two years later the New York Times reported: "The 
major United States effort, besides setting up its own procedures, has been to per- 
suade the South Vietnamese to go along. [South Vietnamese] Government officials, 
once openly hostile to the Convention, now grudgingly accept the American position. 
Much remains to be done, however, to persuade the average South Vietnamese 
soldier to stop using torture." New York Times, 1 July 1966, at 6 col. 3 Concerning 
the basic legal problem one commentator has stated: "The responsibility of one 
member of a multinational or combined force for the quality of prisoner treatment 
accorded by another is still undefined and awaits further debate to determine the 
extent to which a positive supervisory duty should be imposed." Smith, Appraisal 
902. In Levie, Maltreatment in Vietnam 339, the statement was made that there 
was "no legal duty imposed upon the United States by the 1949 Convention to en- 
sure that South Vietnamese troops did not maltreat personnel captured by them." 
As should be clear from the material immediately preceding and immediately fol- 
lowing the quoted sentence, what was meant by that statement was that a Party 
was not legally responsible for its ally's failure to comply with the provisions of 
the Convention, particularly if it had used its best efforts, albeit unsuccessfully, to 
obtain compliance. 



29 

multilateral, almost universal, convention concerning the treatment 
of prisoners of war in international armed conflict would appear to be 
about as "external" and "nondomestic" a matter as could be found. 110 

In order to overcome the reluctance of States to act in this area, 
and to comply with the specific admonition which they accepted in 
Article l, 111 the legal argument has sometimes been advanced that 
this article constitutes a waiver of the provisions of Article 2(7) of 
the Charter of the United Nations. However, such an argument ap- 
pears to embark on too profound, too complicated, and too contro- 
versial a legal thesis. The subject matter involved is clearly interna- 
tional in scope; authority for the intercession of States not involved 
in a particular international armed conflict is clearly present in the 
specific wording of Article 1 and the obvious intention of the 1949 
Diplomatic Conference ; such intercession cannot be considered an un- 
friendly act or an unwarranted interference by the interceding State 
in the affairs of the States so engaged in international armed conflict ; 
hence, there does not appear to be any need to support compliance 
with this provision with the extremely controversial argument con- 
cerning the inapplicability of the Charter restriction. 

The undertaking of each Party to the Convention to respect it under 
all circumstances, together with the concomitant obligation of all oth- 
er Parties to the Convention to ensure respect for it, results in an 
obligation which is absolute in character and which is not based upon 
reciprocity. It is in the nature of a statutory obligation owed to all 
other Parties, rather than a contractual obligation owed only to a 



110 Perhaps as a result of the proposal made at the 1971 Conference of Govern- 
ment Experts (see note 104 supra), the 1972 Draft Additional Protocol prepared 
by the ICRC for the consideration of the 1972 Conference of Government Experts 
contained the following provision : 

Article 8. Co-operation of the High Contracting Parties. 1. The High Con- 
tracting Parties being bound, by the terms of Article 1 common to the Con- 
ventions, to respect and to ensure respect for these Conventions in all circum- 
stances, are invited to co-operate in the application of these Conventions and 
of the present Protocol, in particular by making an approach of a humanitar- 
ian nature to the Parties to the conflict and by relief actions. Such an approach 
shall not be deemed to be an interference in the conflict. 
1972 Basic Texts 7. Obviously, this was intended as an invitation for concerted 
efforts by neutral Parties to obtain compliance with the provisions of the Conven- 
tion in any international armed conflict in which they were not being applied. Un- 
fortunately, but perhaps not unexpectedly, the arguments were quickly advanced 
at the 1972 Conference of Government Experts that this would amount to inter- 
vention, that there was a duty to respect national sovereignty, that there was a 
duty of noninterference in the domestic affairs of other States, etc. 1972 GE Report 
185. Predictably, the proposed article was not included in the 1973 Draft Additional 
Protocol which was prepared by the ICRC as the working paper for the 1974 
Diplomatic Conference. 

111 Not one State which ratified or acceded to the 1949 Convention made a res- 
ervation to the requirements imposed by Article 1. 



30 

Party's adversary in an international armed conflict. 112 The question 
then arises as to the extent to which belligerent Parties can be ex- 
pected to continue compliance in the face of manifold violations, or 
even utter disregard, of the Convention by the other side. 

When the United States Senate was determining whether it should 
give its advice and consent to the ratification of the 1949 Geneva Con- 
ventions, the then General Counsel of the Department of Defense made 
the following statement : 

Should war come and our enemy should not comply with the 
conventions, once we both had ratified — what then would be our 
course of conduct? The answer to this is that to a considerable 
extent the United States would probably go on acting as it had 
before, for, as I pointed out earlier, the treaties are very largely 
a restatement of how we act in war anyway. 

If our enemy showed b} T the most flagrant and general disre- 
gard for the treaties, that it had in fact thrown off their restraints 
altogether, it would then rest with us to reconsider what our posi- 
tion might be. 11 * 
During the armed conflict in Korea the United States complied with 
the 1949 Convention despite what amounted to almost total disregard 
of its provisions by the North Koreans and the Chinese Communists. 114 
During the armed conflict in Vietnam the United States attempted to 
comply with the 1949 Convention despite the denial by both the North 
Vietnamese and the Vietcong that the Convention was even applica- 
ble. 115 Whether the United States, or any other Party to the Conven- 
tion, will long continue to comply with the Convention in the face of 
a total disregard of its provisions or outright refusal to apply it by 



n- U.N., Human Rights, A/7720, para. 82; Draper, Recueil 72. Unlike the 1949 
Convention, the 1954 Hague Convention for the Protection of Cultural Property in 
the Event of Armed Conflict specifically provides, in Article II thereof, for a with- 
drawal of protection (limited to the particular property involved), where a viola- 
tion occurs and persists. 

113 Testimony of Wilber M. Brucker, 1955 Hearing 11. 

114 None of the participants in those hostilities had as yet ratified or acceded to 
the Convention — but they agreed to be bound by its "humanitarian principles." For 
documentation on the completely unsuccessful efforts of the ICRC to obtain com- 
pliance with the four 1949 Conventions by the North Koreans and later by the so- 
called Chinese People's Volunteers during the hostilities in Korea (1950-53), see 
ICRC, Conflit de Coree, passim. For the manner in which compliance with the 1949 
Prisoner-of-War Convention in those hostilities by the United Nations Command 
was used for aggressive purposes by the North Koreans and the Chinese, see 
U.N.C., Communist War, passim; U.K., Treatment, passi?n; and U.S., POW, 
passim. 

U5 While there were undoubtedly numerous violations of the 1949 Convention by 
members of the armed forces of both the United States and the Republic of Viet- 
nam, these were the acts of individuals, not the result of the national policy of the 
Parties concerned and, when evidence was available, the individual who committed 
the violation was punished therefor. See, eg., United States v. Griff en. 



31 

the other side in a future international armed conflict remains to be 
seen. Certainly, should another such adversary adopt a similar atti- 
tude, it can be assumed that the United States might well do what it 
has said it would do — "reconsider what [its] position might be" — if 
for no other reason than to bring pressure to bear to obtain proper 
treatment for members of its armed forces held as prisoners of war, 
treatment which they did not receive in either of the two international 
armed conflicts mentioned. 

Commentators generally appear to be agreed that few States can 
actually be expected to continue to apply the provisions of the Con- 
vention in the absence of reciprocity despite the provision to that 
effect contained in the Convention. 116 At first glance, from a humani- 
tarian point of view, this appears to be extremely unfortunate, as it 
means that where one side fails to comply with the Convention, all 
prisoners of war held by both sides will be denied the safeguards of 
the Convention. On the other hand, however, if a Party can only en- 
sure that members of its armed forces held as prisoners of war will 
receive the humanitarian treatment contemplated by the Convention 
by affording such treatment to the enemy prisoners of war which it 
holds in custody, this may, in the end, prove more humanitarian than 
unilateral compliance as it may well result in all prisoners of war held 
by both sides receiving Convention treatment. This outcome will, of 
course, depend upon many factors, the principal ones being the gen- 
eral national attitude of a Party toward compliance with its inter- 
national commitments 117 and its concern for the well-being of its own 



us Miller, The Law of War 219, 230-31, 256, 261, & 262. This problem was dem- 
onstrated by events which occurred in the Middle East after the October 1973 
hostilities. Syria refused to furnish the names of the Israeli prisoners of war held 
by her or to allow the ICRC to visit them. Israel, which had furnished the names 
of Syrian prisoners of war, then refused to allow the ICRC to visit them. The 
difficulties escalated and, finally, on 21 January 1974, the ICRC sent an appeal to 
all 135 States Party to the Convention which stated, in part: 

. . . The competent authorities all too often make reciprocity a condition for 
the application, totally or in part, of the Geneva Conventions. This is equiva- 
lent, in prevailing circumstances, to the exercise of reprisals. . . . The ICRC 
emphasizes that commitments under the Geneva Conventions are absolute, and 
that States, each one to all others, bind themselves, solemnly and unilaterally, 
to observe in all circumstances, even without any reciprocal action by other 
States, the rules and principles which they have recognized as vital. 
14 I.R.R.C. 76-77. 

117 In discussing the problem of compliance, one commentator draws what ap- 
pears to be a valid distinction between States which are law-abiding (those which 
are "basically disposed toward compliance with the law of war as a matter of na- 
tional policy") and States which are law-defying (those which are "neglectful of 
the law of war or disposed to violate it") . Baxter, Compliance 82. 



32 

captured personnel. 118 

One of the major reasons why the Austinian school of legal philos- 
ophy denies that international law is, in fact, law is because of its 
lack of sanctions, its lack of enforcement procedures in the face of 
violations — and the law of international armed conflict in general, and 
that portion thereof relating to prisoners of war in particular, is, un- 
fortunately, largely subject to this criticism. As we have seen, great 
reliance was placed by the draftsmen of the 1949 Convention on the 
moral suasion to be applied by other Parties to the Convention who 
were not involved in the international armed conflict, all of whom 
would have agreed to "ensure respect" for its provisions. As we have 
also see, this has been, and can be expected to continue to be, some- 
what less than perfect as a method of obtaining substantial compliance 
with the Convention. What other forces for compliance with the Con- 
vention are available? One of the recognized experts in this area of 
the law has suggested five: (1) the threat of punishment of individ- 
ual violators as criminals; (2) the threat of the award of "compen- 
sation" against States which violate the Convention and in favor of 
States which are the victims of such violations; (3) world public 
opinion; (4) third-party protection and inspection; and (5) instruc- 
tion of members of the armed forces and annual reporting of the 
nature and extent of such training. 119 

The first two "forces" listed are obviously effective only as deter- 
rents, as threats of action which will be taken after the act and, usu- 
ally, against a defeated foe; the threat of punishment of individuals 
for violations of the Convention is probably just as effective as the 
threat of punishment inherent in any penal code ; 120 the threat of the 



118 It is for this latter reason that it is particularly difficult to understand the 
attitude taken by the Soviet Union in 1941-42 when Germany, which held many, 
many more Russians as prisoners of war than the Soviet Union held Germans, was 
willing, on a strictly reciprocal basis, to take some small steps to ease the life of 
the captives held by both sides. The strenuous efforts of the ICRC to effectuate 
that willingness collapsed because of what can only be described as lack of interest 
on the part of the Soviet Union. 1 ICRC Report, 408-25. The miseries endured by, 
and the deaths of, literally hundreds of thousands of Russian prisoners of war in 
German hands can be attributed, at least in some small part, to that seemingly 
inexplicable decision of the Soviet Government of that time. 3 ICRC Report 55; 
Dallin, German Rule 426. It can only be explained by the belief, later clearly dem- 
onstrated by the same Soviet Government, that all Russian military personnel 
taken prisoners of war were of no further value and either had been, or had be- 
come, traitors to their country. Eisenhower, Crusade in Europe 469; Fehling, One 
Great Prison ix; Dallin, German Rule 420, 426. See notes VI-79 and VII-141 infra, 
see also Garthoff , Soviet Military Doctrine 251 ; Shub, The Choice 44-45 ; Bethell, 
The Last Secret, passim. 

119 Baxter, Compliance, passim. 

120 Of course, a member of the armed forces of a "law-abiding" State knows 
that he can anticipate punishment by his own national authorities, just as he 
would be punished for any other crime which he committed. See, e.g., note 115 
supra 



33 

possible award of money damages 121 will not be very effective against 
a State which is fighting for its very existence and which is, in any 
event, spending much of its national treasure in prosecuting an inter- 
national armed conflict. 122 World public opinion is both amorphous and 
ephemeral. It is exceedingly difficult to arouse and almost impossible 
to maintain for a sufficient period of time for it to be effective. 123 
Third-party protection and inspection — on-the-spot policing of com- 
pliance by a neutral — is unquestionably an effective force for compli- 
ance. It is probably the most effective method of securing compliance 
with the 1949 Convention presently available. 124 And instruction of 
the members of the armed forces of Parties with respect to the con- 
duct legally imposed upon their nation generally and on each of them 
personally by the provisions of the Convention is certainly a matter 
of absolute necessity if individual compliance from the great mass of 
the military is to be obtained. 125 But, of course, the imposition of war- 
time sanctions against a Party which violates, or permits violations 
of, the provisions of the Convention, discussed above, 126 is, most cer- 
tainly, a sixth potential method of ensuring compliance with the pro- 
visions of the Convention — a method which has not, up to this point 
in time, been exploited. 127 



121 Compare Article 3, Fourth Hague Convention of 1907, and Article 131 of the 
1949 Prisoner-of-War Convention, and Article 91 of the 1977 Protocol I. 

122 The "reparations" levied against Germany after World War I obviously did 
not deter Nazi Germany from embarking- on World War II. 

123 Ikle, After Detection-What? 39 For. Aff. 208^ 209. A notable exception was 
the success of the United States in mobilizing world public opinion against the war 
crimes trials of captured American pilots projected by North Vietnam in 1966. 
Levie, Maltreatment in Vietnam 344-45; Smith, Appraisal 902-04. Pakistan w«5 
considerably less successful in mobilizing world public opinion when India violated 
the Convention by continuing to detain the 90,000 Pakistani prisoners of war held 
by her for almost two years after the cessation of hostilities. 

124 See the discussion of the Protecting Power at pp. 262-293 infra. 

125 Article 127 of the Convention mandates the obligation "to include the study 
[of the Convention] in their programmes of military and, if possible, civil instruc- 
tion, so that the principles thereof may become known to all their armed forces and 
to the entire population." Unfortunately, there is no requirement for reports con- 
cerning the extent of compliance with the foregoing provisios. However, see 1969 
Implementation, II, at 12-137. See also 1973 Implementation, passim. Article 72(3) 
of the 1973 Draft Additional Protocol was intended to rectify this omission. Con- 
cerning this problem, see pp. 93-96 infra. 

126 See pp. 19-22 supra. See also Levie, Working Paper 13-14. 

127 On several occasions the General Assembly of the United Nations has adopted 
resolutions [e.g., G.A. Res. 2676, 25 U.N. GAOR, Supp. 28, at 77, U.N. Doc. A/8028 
(1971)1 calling upon "all parties to any armed conflict to comply with the terms 
and provisions of the Geneva Convention relative to the Treatment of Prisoners 
of War, of 12 August 1949"; but it has never recommended that sanctions be im- 
posed by the Security Council for noncompliance, no matter how patent the viola- 
tion or violations may have been. 



34 

It should be obvious from the foregoing discussion that one area of 
the Convention which greatly needs review and improvement is that 
pertaining to its enforcement ; and that the ideal sought — full compli- 
ance by all States engaged in international armed conflict — will only 
be attained when all Parties to the Convention affirmatively display a 
willingness to participate in the task of securing compliance without 
regard to the identity of the belligerents. 

E. ENTITLEMENT TO PRISONER-OF-WAR STATUS 

We come now to another area of the Convention which was, fore- 
seeably, inadequately drafted, 128 as has been demonstrated in the 
period since 1949 : the identification of the individuals who are 
entitled to be designated prisoners of war and who therefore are en- 
titled to the protection of all of the benefits and safeguards set forth 
in the Convention. Article 4, the basic Article dealing with the sub- 
ject, 129 is the longest and most detailed Article in the Convention. Un- 
fortunately, it contains a number of seeds of controversy. 

Article 3 of the Regulations attached to the Second Hague Conven- 
tion of 1899 and to the Fourth Hague Convention of 1907 both stated 
"[i]n the case of capture by the enemy, [members of the armed forces] 
have a right to be treated as prisoners of war." 130 (Emphasis added.) 
Article 1 of the 1929 Convention gave prisoner-of-war status to those 
persons within the categories specified in the 1907 Hague Regulations 
who had been "captured by the enemy." The 1947 Conference of Gov- 
ernment Experts recommended that the new convention then under 
discussion "should itself enumerate these classes of persons" (and not 
incorporate the provisions of another treaty by reference), and that 
they should benefit from the protection of the convention "when they 
fall into enemy hands." 131 These recommendations were adopted, and 
the draft convention prepared by the ICRC for the use of the 1948 
Stockholm Conference defined prisoners of war as those individuals 
belonging to one of the categories listed therein "who have fallen into 
enemy hands." 132 At Stockholm the quoted phrase was changed to 
"who have fallen into the power of the enemy." This was included in 



128 Baxter, Unprivileged Belligerency 327. 

129 We shall here deal primarily with Articles 4 and 5 of the Convention. However, 
not only will a number of the other articles of the Convention — such as 33, 85, etc. 
— have an impact on this problem, but we must also bear in mind the cognate pro- 
visions of the First and Second Conventions. 

130 Only the French version of these Conventions was official. In Articles 4 and 
7 of both sets of Regulations the French version defined prisoners of war as being 
"au pouvoir c/c" the Detaining Power; but for some unknown reason, while in 
Article 4 this was correctly translated into English as "in the power of," in Article 
7 it was translated as "into whose hands prisoners of war have fallen." See, e.g., 
36 Stat. 2296-97; and Deltenre 258-61. 

"I 1947 GE Report 104. 

i:i - Article 3, Draft Revised Coyivoitions 52. 



35 

the opening sentence of Article 4 A of the 1949 Convention without 
change. While the change of wording from "captured by the enemy" 
to the present phrase "who have fallen into the power of the enemy" 
was one of the changes adopted in order to make the 1949 Convention 
more inclusive, 133 and is something of an improvement, it has, as we 
shall see, solved some problems while creating others. 

Rhetorically, "capture" implies some affirmative act by the military 
forces of the capturing power. On the other hand, an individual can 
have "fallen into the power of the enemy" by means other than cap- 
ture, e.g., by voluntary surrender. 134 Thus, upon the final collapse of 
Germany in May 1945, the United States, the United Kingdom, and 
France contended that the hundreds of thousands of German soldiers 
who thereafter passed into their custody were not entitled to prisoner- 
of-war status because they had not been "captured" but had volun- 
tarily submitted themselves to Allied custody ; and the term "Surren- 
dered Enemy Personnel" (SEP) was coined 135 in order to avoid the 
use of the term "prisoner of war," with all of the legal implications 
which adhered to it. 136 The major reason for substituting the term 
"fallen into the power of the enemy" for the word "captured" was to 
preclude the use of such a subterfuge in any future international 
armed conflict and to ensure that military personnel who surrender, 



133 The representative of the ICRC (Wilhelm) who participated in the delibera- 
tions of Committee II (Prisoners of War) at the 1949 Diplomatic Conference ex- 
plained that "it had been suggested that the words 'fallen into enemy hands' had a 
wider significance than the word 'captured' which appeared in the 1929 Conven- 
tion." 2A Final Record 237. See also note 11-377 infra, and Wilhelm, Status 29. 
For the sake of brevity, the terms will be used interchangeably herein except 
where the text indicates otherwise. (While the Diplomatic Conference made the 
first paragraph of Article 5 conform to Article 4A, it overlooked the fact that the 
second paragraph of Article 5 contained the phrase "fallen into the hands of the 
enemy" — and that the first paragraph of Article 12 contained the phrase "in the 
hands of the enemy Power.") 

134 By "voluntary surrender" is meant the act of the individual who, contrary to 
his long-term desire, concludes that in view of the situation with which he is then 
confronted (national capitulation, he is separated from the armed forces to which 
he belongs, he is lost and weaponless, etc.), it is not possible for him to continue 
resistance. (The problem of deserters and defectors is discussed at pp. 76-81 infra.) 

i ;} 5 JAGA 1946/10384, 7 January 1947. The term "disarmed personnel" was also 
employed. PMG Review, III, 226-27. The same practice was followed after the 
surrender of Japan. 1 ICRC Report 539-40. 

136 United States v. Kaukoreit. The distinction was discontinued in March 1946. 
1 ICRC Report 540. In the internal armed conflict which occurred in Malaysia in 
the early 1950s there was a reversal of this terminology, the term "captured enemy 
personnel" (CEP) being used to designate individuals who had been captured and 
who were to be treated as criminals, and the term "surrendered enemy personnel" 
(SEP) being used to designate individuals who had voluntarily given themselves 
up and who were to be treated as prisoners of war. This was apparently intended 
to encourage surrenders. Miller, The Law of War 258-59; Brewer, Chieu Hoi 51. 



36 

even after the collapse of their country's government or military effort, 
will still be entitled to receive the full protection of the Convention. 137 
Having specified the event (falling into the power of the enemy) the 
occurrence of which would entitle certain individuals to prisoner-of- 
war status, it was necessary to identify in some fashion the individuals 
who would so qualify. This was accomplished by following the method 
used in predecessor conventions : the enumeration of general catego- 
ries. Because so many problems are involved in determining the extent 
of coverage in almost every category, an individual, detailed analysis 
is deemed necessary. 

1. Members of the Armed Forces 

All of the members of the regular armed forces of a nation fall with- 
in this category. 138 The precise military elements which constitute the 
armed forces of a State is strictly a matter of national law. 139 Each 
State may, and usually will, have laws specifying the components 
which are included within its regular armed forces. 140 As we shall 
see, 141 in the next subparagraph of this Article of the Convention there 
are four specific requirements which must be met in order to entitle 
an individual within the category there dealt with to prisoner-of-war 
status. These four requirements, briefly stated, are: (1) having a re- 
sponsible commander; (2) wearing a fixed distinctive sign; (3) car- 
rying arms openly; and (4) operating in accordance with the laws 
and customs of war. This enumeration does not appear in subpara- 
graph 1, dealing with the regular armed forces. This does not mean 
that mere membership in the regular armed forces will automatically 
entitle an individual who is captured to prisoner-of-war status if his 



137 Draper, Recueil 109; Kunz, Treatment 105; Olgiati, Croix-Rouge 719; Krafft, 
Present Position 137-38. It will be noted that nowhere in the Convention is the 
term "prisoner of war" denned. Flory, Nouvelle conception 54. 

138 while subparagraph (1) of Article 4A uses the term "armed forces" and 
subparagraph (3) thereof uses the term "regular armed forces," this appears 
merely to have been bad draftsmanship, the intent of the draftsmen having been 
the same in both cases. And, of course, these terms include all of the uniformed 
services which constitute a part of the armed forces of a particular country: 
army, navy, air forces, marines, coast guard, frontier guards, etc. (In the United 
States and, perhaps, in some other countries, the word "regular" is often used to 
designate the professional military careerist. This is not the sense in which it is 
used here. The conscript, the wartime volunteer, the reservist called up for active 
service, and the career soldier are all members of what is here termed "regular 
armed forces." See, e.g., In re Territo 156 F2d at 146.) Article 43(1) of the 1977 
Protocol I states that "[t]he armed forces of a Party to the conflict consist of all 
organized armed forces, groups and units which are under a command responsible 
to the Party for the conduct of its subordinates." See also Article 43(3) thereof. 

139 Lauterpacht-Oppenheim 255. This does not mean, however, that a State may, 
by domestic legislation, bring otherwise unprivileged combatants within the pro- 
tection of the Convention. 

no See, e.g.. 10 U.S.C. §101 (4) ; and Swiss Manual para. 54. 
141 See pp. 44-45 infra. 



37 

activities prior to and at the time of capture have not met these 
requirements. 142 The member of the regular armed forces wearing 
civilian clothes who is captured while in enemy territory engaged in 
an espionage or sabotage mission is entitled to no different treatment 
than that which would be received by a civilian captured under the 
same circumstances. 143 Any other interpretation would be unrealistic, 
as it would mean that the dangers inherent in serving as a spy or 
saboteur could be immunized merely by making the individual a mem- 
ber of the armed forces ; and that members of the armed forces could 
act in a manner prohibited by other areas of the law of armed con- 
flict and escape the penalties therefor, still being entitled to prisoner- 
of-war status. 144 

As long as members of the regular armed forces are in uniform 
there should be no problem with respect to their entitlement to pris- 
oner-of-War status. 145 There is no legal basis whatsoever for denying 



142 The official ICRC discussion of the Convention refers only to the need for 
members of the regular armed forces to comply with the requirement for a fixed 
distinctive sign, a requirement which is, of course, normally met by the wearing 
of the uniform. Pictet, Commentary 52. This is logical because it can be assumed 
that in the regular armed forces there will always be a responsible commander; 
that the uniformed individual may carry arms in any manner that he desires ; and 
that if he violates the laws and customs of war he is still entitled to prisoner-of- 
war status even though he may be tried for war crimes. See note 144 infra. While 
the Delegate of the Soviet Union at the 1949 Diplomatic Conference appeared to 
argue that none of the four requirements was applicable to members of the armed 
forces (2A Final Record at 466), it is believed that the interpretation here given 
is more appropriate and much more widely accepted. 

143 Article 29, second paragraph, 1907 Hague Regulations; British Manual 
para. 96; U.S. Manual para. 74. However, if he claims to be entitled to prisoner- 
of-war status he is entitled to have his claim determined by a "competent tri- 
bunal." See discussion of Article 5(2), pp. 55-59 infra. See also Public Prosecutor 
v. Koi; Ali and Another v. Public Prosecutor ; Krofan v. Public Prosecutor ; and 
Military Prosecutor v. Kassem and Others. For discussions of the Privy Council 
decisions in Koi and Ali, see Baxter, Qualifications 290; and Elman, Prisoners of 
War 178. 

144 A distinction must be made between a conventional war crime allegedly 
committed by an individual concededly within the purview of Article 4 who, under 
Article 85, retains prisoner-of-war status at least until convicted (see pp. 379-382 
infra), and other types of offenses such as acting as a spy or saboteur while 
wearing civilian clothes. Ex parte Quirin; Colepaugh v. Looney ; Krofan v. Public 
Prosecutor. For a further discussion of this problem see Draper, Recueil 109-10. 
See also Article 46 of the 1977 Protocol I. (It should be observed that spying, 
while punishable under the law of war, is not a violation of international law. 
U.S. Manual para. 77; British Manual para 326; Swiss Manual paras. 36 & 38; 
Baxter, Unprivileged Belligerency 333.) 

145 The Swiss Manual para. 55 correctly states: "In case of capture, the uniform 
creates a presumption that the individual wearing it belongs to the armed forces." 
(Trans, mine.) See also Article 40 of the 1973 Draft Additional Protocol. Article 
46(2) of the 1977 Protocol I specifically provides that a member of the armed 
forces gathering information in enemy territory "shall not be considered as engag- 
ing in espionage if, while so acting, he is in the uniform of his armed forces." 



38 

the benefits and safeguards of the Convention to acknowledged mem- 
bers of regular armed forces on the ground that they are guilty of 
making "aggressive war" and are, therefore, "war criminals," as was 
done by the North Vietnamese during the hostilities in Vietnam 
(1965-73). 146 

This subparagraph also includes "members of militias or volunteer 
corps forming part of such armed forces." Of course, when such 
troops are, by domestic law, incorporated into and made a part of the 
armed forces of the country, there can be no question of their entitle- 
ment to prisoner-of-war status and to the benefits and safeguards of 
the Convention. 147 

2. Members of Other Militias and Members of Other Volunteer 
Corps, Including Those of Organized Resistance Movements, 
Belonging to a Party to the Conflict and Operating in or outside 
Their Own Territory, etc. 

Here we have the most complicated, most controversial, and most 
unintelligible provision of the Article. In an effort to clarify the pro- 
visions of this subparagraph to the maximum extent possible, it will 
be necessary to analyze it clause by clause, and to include in the anal- 
ysis the limiting provisions which immediately follow it. 

a. MEMBERS OF OTHER MILITIAS AND MEMBERS OF 
OTHER VOLUNTEER CORPS 
When this subparagraph of Article 4 was being discussed and re- 
drafted at the 1949 Diplomatic Conference, the representative of the 
United Kingdom requested that there be an independent reference to 
militias inasmuch as in England militias were not a part of the reg- 
ular armed forces nor were they voluntary corps. As this particular 
problem was not mentioned again in the lengthy debate on this sub- 
paragraph which followed, it must be assumed that the United King- 
dom request is the reason for the reference to militias other than those 



140 See notes 142 and 144 supra, and notes 157 and VI-177 infra. Concerning 
the "Commissar Decree," issued by the Nazis in 1940, evidence was given to the 
IMT that it provided that "political commissars of the army are not recognized 
as prisoners of war, and are to be liquidated at the latest in the transient 
prisoner of war camps." I.M.T. 472. Under such an interpretation, reminiscent 
of the Religious Wars of the sixteenth and seventeenth centuries, law becomes 
irrelevant. Concerning the 'Commando Order," issued by Hitler in 1942, under 
which uniformed members of the Allied armed forces engaged in missions behind 
the German lines were to be dealt with summarily ("slaughtered to the last 
man"), another gross violation of the rights of members of the regular armed 
forces, see l.M.T. 471; The Dostlcr Case; and Kalshoven, Reprisals 184-93. 

1 ,T Thus, in the United States when Reserve or National Guard units are 
called to active duty in the Federal service they are just as much a part of "the 
armed forces of a Party to the conflict" as are the regular (permanent) units. 
The same is true in the United Kingdom with respect to the Territorial Army, 
the Army Emergency Reserve, and the Home Guard. British Manual para. 89 
n.l. See Jones, Status of the Home Guard in International Law, 57 L.Q. Rev. 212. 



39 

which form a part of the regular armed forces. 148 It presumably would 
be applicable to the members of any militia which is not, under na- 
tional law, a part of the armed forces of the country. This will prob- 
ably be a comparatively rare occurrence. 

b. INCLUDING THOSE OF ORGANIZED RESISTANCE 
MOVEMENTS 

The inclusion of this clause, and the limiting provisions which fol- 
low it, a direct result of the experiences of World War II, was consid- 
ered to be a major breakthrough in enlarging the group of individuals 
who would, upon falling into the power of the enemy, be entitled to 
the status of prisoners of war. 149 It is now apparent that, considering 
the aforementioned limiting provisions, this attempted enlargement 
of the provisions of prior conventions accomplished little or nothing. 

During World War II so-called resistance movements sprang up or 
were created within the territory of most of the countries occupied by 
an enemy, whether the occupation was partial or total. 150 It was with 
respect to the status of members of these types of resistance move- 
ments that the 1949 Diplomatic Conference was attempting to make 
provision. 151 However, because of a perhaps understandable reticence 



14 » The British position is stated at 2A Final Record 237. The Working Party of 
the Special Committee recommended the double reference to militias (ibid., 414- 
15) and it was adopted without real debate. Ibid., 467, 477-78, & 561. The ICRC 
errs in asserting that the captioned provision means "other than those enlisted in 
the regular army." (Emphasis added.) 1973 Commentary 48 n.14. See note 138 
supra. 

149 The official ICRC discussion of the Convention refers to this provision as 
"solving one of the most difficult questions — that of partisans." Pictet, Commen- 
tary 49. This was a reiteration of what Committee II (Prisoners of War) of the 
1949 Diplomatic Conference had said. 2 A Final Record 561. The two statements 
were both overly optimistic. Baxter, Geneva Conventions 66. 

150 Of course, allies, displaced governments, and governments-in-exile continued 
to fight on so that in most cases there was no question of the continued existence 
of an international armed conflict. The situation in France, where the government 
in power on the ground had signed an armistice agreement while a government- 
in-exile, newly created, continued the conflict, was different and created a number 
of unusual legal problems. Pictet, Recueil 87-88. 

151 It is important to bear in mind that in drafting Article 4A(2) the 1949 
Diplomatic Conference was concerned solely with the World War II "partisan," 
"guerrilla," "resistance fighter," etc. — different names for a particular category 
of participant in international armed conflict — and not at all with the so-called 
"freedom fighter," or "member of a national liberation movement," participants 
in an internal armed conflict, a war of independence. The Soviet Union has im- 
plicitly admitted this distinction by opting to attempt to convert wars against 
colonial powers into international armed conflicts. Soviet International Law 402. 
That many of the newly independent States see the Soviet approach as a method 
of helping the various groups fighting for independence was demonstrated by the 
discussions concerning the amendment to Article 1 of the 1973 Draft Additional 
Protocol adopted by Committee I at the 1974 Diplomatic Conference and approved 
at the Plenary Meeting of the 1977 session of the Conference as Article 1(4) of 



40 

on the part of the representatives of some countries which had not 
suffered occupation and who feared the possible adverse future con- 
sequences of an overly broad provision, 152 a number of limitations were 
introduced, limitations which, in many cases, appear to negate the 
possibility that members of the usual resistance group could qualify 
for prisoner-of-war status if they should fall into power of the enemy. 
If the term "organized" was used as a method of eliminating the 
casual soloist, it was unnecessary, as this type of individual was al- 
ready denied prisoner-of-war status because he would not be "com- 
manded by a person responsible for his subordinates." 153 The use of 
the term "organized" here can, however, certainly be accepted as a 
justifiable excess of caution. 

c. BELONGING TO A PARTY TO THE CONFLICT 
Our concern throughout this treatise is, of course, with international 
armed conflict — armed conflict between States. It is understandable 
that it was considered appropriate that for individuals to receive the 
protection afforded by a convention regulating international armed 
conflict, they should be required to have some organizational connec- 
tion with one of the States which is a Party to the conflict. This pro- 
vision arose out of the events of World War II ; but, strangely enough, 
it does not even provide with any degree of certainty for all of the 
situations which are recognizable as having occurred during that con- 
flict. The Soviet Government could and did claim the resistance move- 
ment which operated behind German lines in the Soviet .Union ; the 
United States Government could and did claim the resistance movement 
which operated against the Japanese in the occupied Philippines. Each 
of these representative resistance movements was fighting in support 



the 1977 Protocol I. Forsythe, The 1974 Diplomatic Conference on Humanitarian 
Law: Some Observations, 69 AJ.I.L. 77; Suckow, The Development of Interna- 
tional Humanitarian Law, ICJ Rev., June 1974, at 50. See also 1969 Reaffirma- 
tion 101-02. 

15 ~ The following apt statement appears in 2A Final Record 469 : "During the 
course of further discussion Captain Mouton (Netherlands) said that there were 
two points of view: that of the Powers likely to be Occupying Powers in the event 
of another war (those were usually the great Powers) and the Powers whose 
countries were likely to be occupied (the smaller Powers). . . ." 

153 Schwarzenberger, Human Rights 252. See also Fooks, Prisoners of War 
34-35. The phrase quoted in the text ("commanded by a person responsible for 
his subordinates"), a reiteration of one of the provisions of Article 1, 1907 Hague 
Regulations, had already been included in the draft article. It is discussed at 
length at pp. 45-46 infra. The two terms, "organized" and "commanded by a 
person responsible for his subordinates," should be understood in the same sense. 
Bindschedler 41. See also Article 41 of the 1973 Draft Additional Protocol. This 
Article, with editorial changes, became Article 43(1) of the 1977 Protocol I. The 
relevant portion now states: "Such armed forces shall be subject to an internal 
disciplinary system which, inter alia, shall enforce compliance with the rules of 
international law applicable in armed conflict." 



41 

of, and with the concurrence of, a government with an army in the 
field and indubitably " [belonged] to a Party to the conflict." But what 
of the resistance movements in such countries as Norway, 154 Denmark, 
or the Netherlands? Is a "government-in-exile" a "Party to the con- 
flict" ? 155 And what of a situation such as that which existed in Yugo- 
slavia where one indigenous resistance movement, which would prob- 
ably have been repudiated by the government in power at the time of 
the occupation, fought the occupying Power, while another, which 
probably would have been acceptable to that government, fought the 
other resistance movement and supported the occupying Power? And 
what of the situation in Italy where, after Mussolini's downfall, an 
indigenous resistance movement opposed the Badoglio Government and 
supported the Germans ? And finally, what of the situation in France 
where the indigenous resistance movement opposed the Government 
in actual power and supported the government-in-exile? 156 While none 
of these situations is specifically covered by the quoted provision of the 
Convention, each one of them, and others not mentioned, had actually 
occurred during the hostilities which had ended just shortly before 
the provision was drafted. It is not difficult to conclude that it was 
intended to cover each of the instances in which the indigenous re- 



154 It is here assumed that a government such as that of Quisling in Norway 
during- World War II was not an indigenous government but was merely a mas- 
querade for the military government of the Occupying Power. This assumption is 
not made with respect to the contemporaneous Petain Vichy Government of 
France. 

155 Subparagraph 4A(3) gives prisoner-of-war status to "[m]embers of regular 
armed forces who profess allegiance to a government or an authority not recog- 
nized by the Detaining Power." See pp. 59-60 infra. At the 1949 Diplomatic Con- 
ference the suggestion was made that a similar provision should be included with 
respect to members of organized resistance movements. 2A Final Record 388. No 
action was taken with respect to this suggestion. Such a provision was proposed 
anew in Article 38(1) of the 1972 Draft Additional Protocol (1972 Basic Texts 
14-15) and in the first paragraph of Article 42 of the 1973 Draft Addition Pro- 
tocol (1973 Commentary 47, 50). It is now included in Article 43(1) of the 1977 
Protocol I. 

156 Article X of the 1940 Franco-German Armistice required the French Gov- 
ernment to "forbid French citizens to fight against Germany in the service of 
States with which the German Reich is still at war" and provided (according to 
the unofficial English version) that those individuals who so fought would be 
treated as "insurgents." (The unofficial English version of Article XIV of the 
1940 Franco-Italian Armistice used the term "combatants outside the law.") After 
the Allied landing in France in June 1944 the German commander announced that 
captured members of the French Forces of the Interior (FFI) would be treated 
as unprivileged combatants and the German army actually executed 80 of them 
at one time. The FFI then executed 80 members of the German army captured 
at Annecy. The ICRC subsequently obtained informal verbal assurances that cap- 
tured members of the FFI would be treated as prisoners of war. 1 ICRC Report, 
520-24. Kalshoven, Reprisals 193-97. (The examples given in the text are not 
intended to be exhaustive.) 



42 

sistance movement was opposing an Occupying Power ; it is somewhat 
more difficult to establish a basis for bringing under the Convention 
those resistance movements which supported the invader. Can it be 
said that they "belonged" to a Party to the conflict? It certainly must 
be assumed that the governmental representatives present at the 
Diplomatic Conference in Geneva in 1949 were cognizant of all of 
these variations — but did they intend that the provisions of the Con- 
vention be applicable in all of these cases? 157 The Record of the Con- 
ference does not answer this question. 

It has been mentioned above that the Soviet and United States 
Governments, each a Government of a State which was "a Party to 
the conflict," publicly acknowledged the resistance movement which 
was acting in its support. 158 Unfortunately, the situation is not always 
so clear-cut, and the Government of the Party to the conflict is not 
always so eager to claim or to acknowledge the relationship. In this 
event the relationship may be established on behalf of the resistance 
movement by other means, provided that at least a de facto relation- 
ship is shown. 159 However, it is extremely unlikely that the existence 



157 One extremely distressing facet of this problem is the inordinate likelihood 
that in any international armed conflict in which the Soviet Union is involved, it 
will take the position that members of any resistance movement supporting it, or 
its allies, are fighting in a "just" cause and are, therefore, entitled to prisoner-of- 
war status; but that any such individuals supporting its adversary are "aggres- 
sors" engaged in an "unjust" war and, accordingly, are not entitled to the bene- 
fits and safeguards of the Convention. Trainin, Guerrilla Warfare 561-62; Kul- 
ski, Some Soviet Comments 349 ; Soviet International Law 402 & 423 ; Kunz, 
Treatment 106; U.K., Treatment 1 & 32; Miller, The Law of War 223-24 & 231. 
The laws of war (ius in bello) apply equally to both sides in all international 
armed conflicts, no matter how they originate. Lauterpacht-Oppenheim 218; Ford, 
Resistance Movements 369; SIPRI 2-3. Moreover, "crimes against peace" (the war 
crime of making a war of aggression) can be committed only by national policy- 
makers, not by individual members of the armed forces. ILC, Nurnberg Principles, 
para. 117; Levie, Maltreatment in Vietnam 351 n.140; SIPRI 1. 

158 Some of the other Governments took similar action. See, e.g., the Royal 
Dutch Emergency Decree No. E62 of 5 September 1944. See also 11 Dept. State 
Bull. 263, containing a declaration of the United States concerning the Czechs 
fighting in occupied Czechoslovakia. Frequently, however. Governments are reluct- 
ant to acknowledge irregular combatants. See U.N., Human Rights', A/8052, 
para. 175. The ICRC has said that the requirement of belonging to a Party to the 
conflict "creates the link whereby a subject of international law can be held inter- 
nationally responsible for acts carried out by members of resistance movements." 
1973 Commentary 50. 

159 Pictet, Commentary 56-58. Pictet suggests that specifics such as the delivery 
of arms and other war supplies by the Party to the conflict to the resistance move- 
ment establish the de facto relationship. Ibid., 57 n.l. See also U.N., Human 
Rights, A/8052, para. 175. A subsequent ICRC document suggested that this re- 
quirement could be met either by de facto liaison with a State or by obtaining 
"recognition by one or more States, or even by the international community." 1971 
GE Documentation, VI, at 17. If the second alternative means recognition by a 
State other than the one to which the resistance movement allegedly "belongs," or 



43 

of even a de facto relationship would be accepted as evidence that the 
resistance movement "belonged" to a Party to the conflict in the face 
of a denial of any relationship by that Party. 

The situation which was either not considered as possible by the 
1949 Diplomatic Conference, or which was implicitly rejected by the 
Conference without discussion, was the eventuality that the claim 
might be put forward that individuals who are members of a group 
which admittedly does not belong to any Party to the conflict and 
which is, therefore, waging a "private war" against one of the bellig- 
erent States, are entitled to prisoner-of-war status when they fall into 
the power of the State against which the efforts of the group have 
been directed. Writers in this field have rejected such a claim; 160 and 
one well-reasoned opinion of an Israeli military court has specifically 
held that inasmuch as no Government with which Israel was in a state 
of war accepted responsibility for the acts of the Popular Front for 
the Liberation of Palestine, its members who fell into the power of 
the Israeli armed forces were not entitled to the benefits and safe- 
guards of the Convention. 161 

d. OPERATING IN OR OUTSIDE THEIR OWN TERRITORY, 

EVEN IF THIS TERRITORY IS OCCUPIED 

This is one provision of the subparagraph which liberalizes rather 

than limits. The usual concept of the organized resistance movement 

is of a group operating in home territory occupied by the enemy. 

Under this provision that concept is inapplicable ; the group may also 



an ally thereof, this would undoubtedly be considered by many States to be an 
unwarranted interference in the affairs of other States. It strongly resembles the 
premature recognition of belligerency of another era. 

160 See, e.g., Bindschedler 40; and Draper, Relationship 202. The argument has 
been advanced that inasmuch as the French version of Article 4A(2) uses the 
word "appar tenant," it is not necessary that the resistance movement actually 
"belong" to a Party in the English sense of that word. Apart from the fact that 
the English and French versions are equally authentic, one major difficulty with 
that argument is that French-English dictionaries translate "appartenir"' as "to 
belong [to] ; to be owned [by]." See, e.g., Harrap's New Standard French-English 
Dictionary, I, at A:49 (1972). It is clear that in this instance, unlike a number of 
others, the French and English texts are identical. 

161 Military Prosecutor v. Kassem, 42 I.L.R. at 477-78. The correctness of that 
decision was demonstrated by the action of an Arab guerrilla group, the head- 
quarters of which proudly announced to the press that it had captured an Israeli 
soldier during a raid into Israel and that he had been "subjected to interrogation 
by a special committee before he was executed." St. Louis Post-Dispatch, 3 October 
1974, at 7A, col. 2. It does not take much imagination to interpret "interrogation 
by a special committee" as a euphemism for torture; and as the individual cap- 
tured was a uniformed Israeli soldier taken during the course of a raid into Israel, 
it would be interesting to learn the alleged justification for his execution. No 
Arab State claimed this group — but there are those who contend that if its mem- 
bers are captured they are entitled to the full panoply of the protections of the 
Convention ! 



44 

operate outside of its national territory. Probably what the draftsmen 
had in mind was the resistance group behind enemy lines which with- 
draws as the enemy withdraws so that eventually it is operating in 
the territory of an ally which was also occupied by the common enemy, 
or it is operating in the enemy's own territory. This provision does 
not appear to create any insoluble legal problems ; but what a State 
will actually do when members of an organized resistance movement 
composed of enemy subjects fall into its power in its own territory 
remains to be seen. 

e. THE FOUR CONDITIONS 
During the Franco-Prussian War (1870-71) the Germans summar- 
ily executed as a franc tireur any individual found bearing arms who 
was not able to produce a special authorization from the French Gov- 
ernment. 10 - Article 9 of the 1874 Declaration of Brussels 163 proposed 
to regularize the status of these individuals by specifically granting 
protection to members of militia and volunteer corps who met four 
listed conditions. 104 These conditions were repeated in Article 1 of 
the 1899 Hague Regulations, in Article 1 of the 1907 Hague Regula- 
tions, and in the footnote to Article 1 of the 1929 Prisoner-of-War 
Convention. In the 1949 Convention the four conditions were once again 
included in the text itself and, in addition to being applicable, as here- 
tofore, to members of "militias and volunteer corps," they were made 
applicable to members of organized resistance movements. In the 
modern world, it is in this latter respect that the provision assumes 
major importance. But it must be emphasized that in order to qualify 
for prisoner-of-war status, the members of an organized resistance 
movement must clearly fulfill each and every one of these four condi- 
tions, 105 and that most Capturing Powers will deny the benefits and 



16 - Fooks, Prisoners of War 34. 

16.5 While this Declaration, based largely on the Lieber Code (see note 28 supra), 
never entered into force, it has been a major source of many of the rules included 
in subsequent international conventions which did become effective. 

164 One noted Soviet jurist designated this decision as a victory for the "repre- 
sentatives of democratic states with militia systems." Trainin, Guerrilla Warfare 
541. He thereafter proceeds to indicate why several of the four conditions cannot 
possibly be accepted for application to organized resistance movements. Ibid., 
555-60. However, at the 1949 Diplomatic Conference the Soviet representative 
strongly supported the adoption of the Stockholm draft which included the four 
conditions. 2A Final Record 242, 410, 423, 428. 

165 Military Prosecutor v. Kassem, 42 I.L.R. at 476 & 480. One author draws a 
distinction between those requirements for qualification for prisoner-of-war status 
which relate to the resistance group itself and those which relate to the individual. 
Bindschedler 40-44. The ICRC has now adopted this distinction, although its list- 
ing does not coincide exactly with that of Madame Bindschedler-Robert. 1973 
Commentary 49. There is considerable merit to the drawing of this distinction — 
which means that in certain respects the individual's status is determined by 
matters over which he has little or no control. See text in connection with note 
193 infra. 



45 

safeguards of the Convention to any such individual who is in any 
manner delinquent in compliance. It must also be emphasized that if an 
individual is found to have failed to meet the four conditions, this may 
make him an unprivileged combatant but it does not place him at the 
complete mercy of his captor, to do with as the captor arbitrarily 
determines. He is still entitled to the general protection of the law of 
war, which means that he may not be subjected to inhuman treatment, 
such as torture, and he is entitled to be tried before penal sanctions 
are imposed. 166 

First condition: that of being commanded by a person responsible 
for his subordinates. As we have already seen, 167 this condition is 
closely akin to the requirement that the resistance movement be one 
which is "organized." But exactly what is the meaning of the phrase 
"commanded by a person responsible for his subordinates"? Who is 
such a person? One interpretation is that it means "responsible to 
some higher authority." 168 However, it would seem equally important 
that the responsibility go down as well as up. In other words, there 
must be some commander who is giving orders to the individuals who 
are actually conducting belligerent operations : a commander who can 
expect that his orders will normally be obeyed and who can enforce 
some type of disciplinary action to ensure that those orders will be 
obeyed. 169 In the words of the ICRC, "the 'responsible leader' estab- 



166 i97i QE Documentation VI, at 19. In adhering to the Convention, the Pro- 
visional Revolutionary Government of the Republic of Vietnam (the Vietcong) 
made a reservation in which it stated that it would not recognize the "conditions" 
set forth in Article 4A(2) "because these conditions are not appropriate for the 
cases of people's wars in the world today." Quoted in McDowell (ed.), Digest of 
United States Practice in International Law 1975, at 812. (The adherence of the 
Republic of Guinea-Bissau, the former Portuguese colony of Guinea, contains an 
almost identical reservation.) 

167 See note 153 supra. 

1Q 8 Lauterpacht-Oppenheim 257 n.l. Article 42(1) (a) of the 1973 Draft Addi- 
tional Protocol proposed changing the wording of this condition to: "that they 
are under a command responsible to a Party to the conflict for its subordinates." 
The ICRC explanation of the proposed change was that "responsibility for the 
acts of subordinates means that the command is answerable for them to the 
Party to the conflict which bears the responsibility on an international plane." 
1973 Commentary 50. Such a provision is now included in Article 43(1) of the 1977 
Protocol I. See note 153 supra. 

169 British Manual para. 91 n.l, advances the thesis that in order to meet the 
first condition the individual must be subject to "military law," apparently mean- 
ing the national statutory military code governing the conduct of members of the 
regular armed forces. For all practical purposes, this thesis would make Article 
4A(2) an exercise in futility. In the example there referred to, the "Waff en S.S." 
divisions, it is stated that the S.S. organization "had its own code of rules, and 
courts of a kind." This appears to be just about all that can be asked of a unit 
which, by definition, is not a part of the regular armed forces. (Of course, in any 
event, no claim could be made that the "Waffen S.S." was a resistance movement. 
It did have some of the characteristics of an "other militia.") Article 43(1) of the 



46 

lishes a link with the subject of international law [the Party to the 
conflict] , while constituting the guarantee of a certain order, a certain 
discipline ensuring respect for international law." 170 It would seem 
clear that this was the objective sought in the original drafting of 
this condition — a method of securing maximum compliance with the 
laws and customs of war. 171 

One major aspect of the problem of being commanded by a person 
responsible for his subordinates which appears to have been largely 
overlooked is how the member of an organized resistance movement 
who is captured by the armed forces of the Occupying Power estab- 
lishes that he has complied with this condition and that he is, there- 
fore, entitled to be classified as a prisoner of war. The other three con- 
ditions, as we shall see, present factual problems which can be resolved 
in the same manner as any other factual problem. But how does the 
captured individual establish, and to the satisfaction of an enemy not 
inclined to magnanimity, that he is a member of an organized resist- 
ance movement with a responsible commander? To name or otherwise 
identify his immediate commander or any other persons in the re- 
sistance movement's chain of command would, except in a few very 
unusual cases, spell extinction for the movement. It has frequently 
been argued that it is virtually impossible for captured members of an 
organized resistance movement to establish that they have complied 
with the four conditions and are entitled to prisoner-of-war status. 
This is certainly true of the first condition. If the members of an 
organized resistance movement wish to assure their entitlement to 
prisoner-of-war status if captured, their compliance with the second, 
third, and fourth conditions is not impossible — although it will very 
considerably reduce combat effectiveness ; but to establish compliance 
with the first condition will make continued operations by organized 
resistance movements virtually impossible. 1T - 

Second condition: that of having a fixed distinctive sign recogniz- 
able at a distance. The objective of the original draftsmen of this pro- 
vision was probably twofold : ( 1 ) to protect the members of the armed 
forces of the Occupying Power from treacherous attacks by apparently 



1977 Protocol I requires only that there be "an internal disciplinary system." See 
note 153 supra. 

"0 1971 GE Documentation, VI at 13. 

171 The word "ensuring" is frequently used (or misused) in this context. Full 
compliance with the laws and customs of war can never be "ensured," no matter 
how well trained the members of an armed force or of an organized resistance 
movement may be, nor how strict the discipline. Realistically, all that can be 
sought is maximum compliance so that violations are the exception, rather than 
the rule. 

172 Having called the four conditions a "victory" (see note 164 supra), Trainin 
asserts that the first condition is "directed against the very substance of a war 
of the people." Trainin, Guerrilla Warfare 558. 



47 

harmless individuals; 173 and (2) to protect innocent, truly noncom- 
batant civilians from suffering because the actual perpetrators of a 
belligerent act seek to escape identification and capture by immedi- 
ately merging into the general population. 174 Each of the two require- 
ments for the distinctive sign (that it be "fixed" and that it be "recog- 
nizable at a distance") can create problems, cause disputes, and give 
rise to charge and countercharge. 

What is meant by a "fixed" distinctive sign? Must it be sewed on 
or will a handkerchief tied around the arm (which can be restored to 
its normal use with a single tug) suffice? Does a distinctive cap, which 
can be quickly removed and thrown away, meet the requirement? 
These are but a few of the problems of application which can arise. 
These and many others have already arisen and had not been satis- 
factorily resolved when the identical terms used in the two prior 
Hague Conventions and in the 1929 Prisoner-of-War Convention were 
incorporated into Article 4A(2) of the 1949 Convention. 

The ICRC has made several statements attempting to offer accept- 
able interpretations of the meaning of the term "fixed distinctive 
sign." In 1960 it stated that the sign "must be worn constantly" ; 176 
but in 1971 it backtracked somewhat when it said that the sign must 
be "fixed, in the sense that the resistant should w r ear it throughout all 
the operation in which he takes part." 170 Moreover, at that same time 
the ICRC stated that the sign "might be an armband, a headdress, 
part of a uniform, etc." 177 During World War II the listed items were, 
on various occasions, used by resistance groups ; but they were fre- 
quently removed and disposed of at crucial moments in order to enable 
the individual to escape being identified as a member of the resistance 
and as a participant in the particular belligerent act which had occa- 
sioned the search by the Occupying Power — in order to enable him 
"to become invisible ... in the crowd." 178 



17:! One author aptly states: "Thus, if a guerrilla were to disguise himself as an 
innocent peasant, overtake a group of soldiers, and turn around to fire on them, 
this would be treachery, and a violation of the laws and customs of war." Bind- 
schedler 43-44. See also Lubrano 21. 

174 Another apt statement by Madame Bindschedler-Robert: "[H]e may try to 
become invisible in the landscape, but not in the crowd." Bindschedler 43. 

175 Pictet, Commentary 59. This conclusion was contrary to the opinion of the 
Working Party of the Special Committee at the 1949 Diplomatic Conference. 2A 
Final Record 424. 

176 1971 GE Documentation, VI, at 11. 

1 77 Ibid. 

178 See note 174 supra. See also Fooks, Prisoners of War 36. He may legally dis- 
card the distinctive sign after the particular operation has been finally concluded. 
1973 Commentary 51. 



48 

If this provision is to have any meaning at all, 170 it must be inter- 
preted, or redrafted, in such a manner as to ensure that the "fixed 
distinctive sign" is indeed both fixed and distinctive. The candlestick 
maker by day may legally become the resistance fighter by night — 
but while he is so acting he must wear some item which will identify 
him as a combatant, thereby distinguishing him from the general 
population, and that item must be such that he cannot remove and 
dispose of it at the first sign of danger. A handkerchief, or rag, or 
armband slipped onto or loosely pinned to the sleeve does not meet 
this definition. An armband sewed to the sleeve, a logotype of sufficient 
size displayed on the clothing, a unique type of jacket — these will con- 
stitute a fixed and distinctive identifying insignia, effectively separat- 
ing the combatant of the moment from the rest of the population. 

The further requirement for the sign is that it be "recognizable at 
a distance." As long ago as 1924 Fooks said of this requirement: "The 
distance at which the sign must be distinguishable is vague and un- 
determined." 180 The ICRC has taken the, for it, rather unexpected po- 
sition that the sign must be "recognizable at a distance by analogy 
with uniforms of the regular army." 181 Certainly, the members of few 
resistance groups have possessed or worn distinctive signs analogous 
to the uniforms of the regular armed forces, nor could they, in the 
vast majority of cases, be expected to do so or be able to do so. 
Lauterpacht goes even further than the ICRC, stating : 

... it is reasonable to expect that the silhouette of an irregular 
combatant standing against the skyline should be at once distin- 
guishable from that of a peaceful inhabitant by the naked eye of 
ordinary individuals, at a distance at which the form of an indi- 
vidual can be determined. 182 
This appears to place a greater requirement on a member of a resist- 
ance group than is placed on members of the regular armed forces for, 
apart from a weapon, the skyline silhouette of a fully uniformed and 
helmeted soldier would not distinguish him from a peaceful inhabitant 
at maximum, or near-maximum, naked-eyesight distance, particularly 
at dusk or in the dark. 



179 One very pithy observation concerning this condition says: "Short of pre- 
scribing colored or luminous uniforms, an air of unreality has always surrounded 
this particular piece of draftsmanship." Schwarzenberger, Human Rights 252. 
Another equally critical author has stated that "the requirement that combatants 
carry 'a fixed distinctive sign recognizable at a distance' has an exotic air when 
seen in conditions of 'underground' guerrilla warfare." Stone 565. 

180 Fooks, Prisoners of War 36. To the same effect see Schwarzenberger, Human 
Rights 252 and Lauterpacht-Oppenheim 257 n.2. 

181 1969 Reaffirmation 116-17; repeated in 1971 GE Documentation, VI at 11. 
i 82 Lauterpacht-Oppenheim 257 n.2. For an example which, perhaps, offers some 

support for the Lauterpacht position, see Military Prosecutor v. Kassem 42 I.L.R. 
at 478. 



49 

Thus, the problems presented by the requirement of having a fixed 
distinctive sign recognizable at a distance appear to be such that few, 
if any, members of resistance groups will be able to overcome them. 
For this reason the thesis has been advanced that the requirement of 
the distinctive sign should be eliminated. 181 It has been suggested that 
the third condition, that of carrying arms openly, is adequate for iden- 
tification purposes and that the wearing of the distinctive sign should 
only be required as an alternative or substitute for compliance with 
the third condition. 1M But weapons, like armbands, are easily disposed 
of when the necessity arises — and how do the armed forces of the 
Occupying Power identify the recent resistance fighter, identifiable 
only by the possession of a weapon, who, immediately upon finding 
himself in danger, has disposed of his weapon and has become "invisi- 
ble in the crowd" among the true noncombatants who are entitled to 
be protected from belligerent activities, and the effects of those activi- 
ties, in which they have had no part? 

By Article 42(1) (b) of the 1973 Draft Additional Protocol the ICRC 
proposed to substitute for the second and third conditions the require- 
ment that "they [members of organized resistance movements] dis- 
tinguish themselves from the civilian population in military opera- 
tions." This would seem to limit the period of required identification 
to the period of actual military operations, to which, in the nature of 
things, there does not appear to be any major objection. 185 The phrase 
requiring them to "distinguish themselves from the civilian popula- 
tion" is certainly general enough to permit interpretations which 
would include all possible contingencies. But therein lies its weakness. 
Practically every case will involve a contested factual determination, 



is.; Trainin's arguments to support this thesis (that even uniforms do not pre- 
vent surprise attacks at night by guerrillas and that "the intention and activity 
of guerrillas would be obvious even without a uniform") appear to miss the point 
completely and, in any event, are not very convincing. Trainin, Guerrilla War- 
fare 558. 

184 1971 GE Documentation VI, at 11. In Soviet International Law 424, the 
position is taken that both the second and the third conditions " would place parti- 
sans at a clear disadvantage." Professor Kozhevnikov, the author of this chapter 
of the Soviet treatise, does not state why he believes that partisans should be 
given an advantage vis-a-vis the regular uniformed soldier, a result which would 
necessarily follow if those two conditions were completely eliminated. 

185 See note 178 supra, and pp. 53-54 infra, of the text. Such a provision, con- 
siderably modified, was ultimately included in Article 44(3) of the 1977 Protocol 
I which reads: 

Article 44 — Combatants and prisoners of war 

3. In order to promote the protection of the civilian population from the effects 
of hostilities, combatants are obliged to distinguish themselves from the civilian 
population while they are engaged in an attack or in a military operation prepara- 
tory to an attack. Recognizing, however, that there are situations in armed con- 
flict where, owing to the nature of the hostilities [,] an armed combatant cannot 



50 

one which will be made by the Occupying Power — and few Occupying 
Powers will be inclined to be magnanimous in reaching factual deter- 
minations as to the entitlement to prisoner-of-war status of individ- 
uals who have, perhaps within the hour, engaged in hit-and-run tactics 
that have severely hurt the Occupying Power, particularly the morale 
of its armed forces. Nevertheless, the proposed provision does have 
merit and could, to a limited extent — if reasonably applied — solve 
some of the problems involved in attempting to balance the protection 
to which captured members of organized resistance movements would 
be entitled with the protection to which members of the regular armed 
forces are entitled against the activities of illegal combatants. 

Third condition: that of carrying arms openly. This is, unquestion- 
ably, the least ambiguous of the four conditions. 186 A sidearm or hand 
grenade or dagger concealed in the clothing does not constitute com- 
pliance with this condition. 187 A rifle or a submachine gun carried 
openly would constitute compliance. In each case the facts should not 
be particularly difficult of ascertainment nor subject to insoluble dis- 
pute. 

Fourth condition: that of conducting their operations in accordance 
ivith the laivs and customs of war. It would seem indisputable that if 
the members of organized resistance movements are to be permitted 
to claim the protection of the relevant laws and customs of war, they 
must, in turn, themselves comply with those laws and customs. Obvi- 
ously, it would be of little practical avail to attempt to urge upon a 



so distinguish himself, he shall retain his status as a combatant, provided that, 
in such situations, he carries his arms openly: 

(a) during each military engagement, and 

(b) during such time as he is visible to the adversary while he is engaged in a 
military deployment preceding the launching of an attack in which he is 
to participate. 

Acts which comply with the requirements of this paragraph shall not be considered 
as perfidious within the meaning of Article 37, paragraph 1(c). 

18G 1971 GE Documentation, VI, at 13. But see U.N., Human Rights, A/8052, 
para. 178; and Soviet International Law 424. Article 42(1) of the 1973 Draft 
Additional Protocol did not include the requirement of carrying arms openly. But 
see Article 44(3) of the 1977 Protocol I, quoted in note 185 supra. 

187 Lauterpacht-Oppenheim 257 n.3. Sec also Military Prosecutor v. Kasseyn, 42 
I.L.R. at 478-79. In Vietnam individuals who were apparently civilian noncombat- 
ants (women, children, working farmers, etc.) would approach American service- 
men in seeming innocence and then suddenly toss a hand grenade at them. (See 
note 173 supra.) After a very few such incidents the soldiers understandably came 
to distrust all civilians while they were in the field and frequently took definitive 
action upon suspicion and without waiting to ascertain the facts. Thus, the orig- 
inal illegal actions taken by the guerrillas subsequently endangered the members 
of the civilian population who, as noncombatants, were entitled to be protected in 
their stitus. One author believes that this provision is contrary to the principle 
that compliance with the Convention is not based on reciprocity, Kleut, Guerre de 
partisans 103. See the reference to Article 42(1) of the 1973 Draft Additional 
Protocol and to Article 44(3) of the 1977 Protocol I in note 186 supra. 



51 

State engaged in international armed conflict that captured members 
of an organized resistance movement were entitled to prisoner-of-war 
status and to treatment in accordance with the laws and customs of 
war, including the 1949 Convention, even though those same resistance 
fighters had been conducting their operations against the armed forces 
of that State in complete disregard of those very laws and customs — 
as, for example, by killing members of the State's armed forces cap- 
tured by them, thus denying the very protection which they them- 
selves would now be seeking. 188 Moreover, if members of organized 
resistance movements were not held to this standard, this could even 
be advanced as an excuse for noncompliance with the various other 
provisions of this subparagraph already discussed ! 

Despite the weight of the foregoing arguments, the contention has 
at times been advanced, in an attempt to justify the elimination of this 
condition, that to require compliance with the laws and customs of 
war by resistance fighters would render it impossible for them to op- 
erate. 189 This same argument has, of course, been put forth with re- 
spect to every limitation, or attempt to place limitations, on the opera- 
tions of irregular combatants. But if one side in an international 
armed conflict is to be permitted to operate with no restraints what- 
soever on its conduct, it is inevitable that the other side will eventually 
do likewise — and we have then turned the calendar back many centu- 
ries to the days when international armed conflict was almost com- 



188 Pictet, Humanitarian Law 105. See note 161, supra. Article 41(1) (c) of the 
1973 Draft Additional Protocol would have required only that the "new category 
of prisoners of war" therein created conduct their military operations "in accord- 
ance with the Conventions and the present Protocol." Since Article 2 of that Pro- 
tocol denned "Conventions" as meaning only the four 1949 Conventions, compli- 
ance with other laws and customs of war, such as those contained in the 1907 
Hague Regulations, would not have been required. This has been rectified in the 
1977 Protocol I where Article 43(1) requires the enforcement of "compliance with 
the rules of international law applicable in armed conflict" and Article 44(2) 
specifies that "all combatants are obliged to comply with the rules of international 
law applicable in armed conflict," while Article 2(b) defines the term as mean- 
ing "the rules applicable in armed conflict set forth in international agree- 
ments to which the Parties to the conflict are Parties and the generally recognized 
principles and rules of international law which are applicable to armed conflict." 

189 See the arguments collected in Bindschedler 41-43 and in U.N., Human 
Rights, A/8052, para. 180. See note 161 supra. Those who advance this thesis are 
really concerned with the so-called freedom fighter who is engaged in armed con- 
flict with the armed forces of a colonial power. See G.A. Res. 2852, 26 U.N. GAOR, 
Supp. 29, at 90, U.N. Doc. A/8429 (1972; and note 151 supra. See also Article 
1(4) of the 1977 Protocol I. They would probably be among the strong supporters 
of the condition if the resistance movement were operating against them in an 
international armed conflict. 



52 

pletely lacking in restraints. Fortunately, there appears to be compar- 
tively little real support for this position. 190 

One rather difficult problem can arise with respect to the fourth 
condition. Does violation of the laws and customs of war by one, or 
several, members of an organized resistance group constitute a failure 
to comply with the requirements of the condition and thereby dis- 
qualify all of the members of the group ? Perhaps an even more diffi- 
cult question is the entitlement of an individual member of an organ- 
ized resistance group to prisoner-of-war status upon capture when 
he has himself scrupulously complied with the laws and customs of 
war, but the group of which he is a member has perhaps announced 
that it does not consider itself bound by such laws and customs and 
it has, in fact, admittedly violated them. 

It would seem that where, as a matter of policy and official direction, 
the great majority of the members of an organized resistance move- 
ment conduct their operations in accordance with the laws and customs 
of war, there has been compliance with the fourth condition, even if 
there have been individual instances of violations. 191 The converse is 



190 1971 GE Documentation, VI, at 14 & 16; Bindschedler 41; U.N., Human 
Rights, A/8052, para. 179. The Soviet position, as set forth in Soviet International 
Law 423, states: 'The laws and customs of war apply not only to armies in the 
strict sense of the word, but also to levies, voluntary detachments, organized re- 
sistance movement [sic] and to partisans." Trainin's arcane statement on this 
matter is probably to the same effect. Trainin, Guerrilla Warfare 560. But see 
note 164 supra. This condition was probably the most objectionable to the Viet- 
cong. See note 166 supra. Nevertheless, this condition, considerably strengthened 
by the Diplomatic Conference, was ultimately included in the 1977 Protocol I. See 
note 188 supra. 

!9i The U.S. Manual para. 64(d) states: 

This condition is fulfilled if most of the members of the body observe the 
laws and customs of war, notwithstanding the fact that the individual mem- 
ber concerned may have committed a war crime. 
See also 1971 GE Documentation, VI, at 14; and U.N., Human Rights, A/8052, 
para. 179. Article 42(2), 1973 Draft Additional Protocol, specifically provides that 
nonfulfillment of the conditions listed in Article 42(1) by individual members of 
a resistance movement does not deprive the other members of that movement of 
the status of prisoners of war if captured. It further provides that the particular 
individual who fails to fulfill those conditions would, if prosecuted, be entitled to 
the judical safeguards of the Convention and, even if sentenced, would retain his 
status as a prisoner of war. See note 197 infra. The Diplomatic Conference did 
not deem it necessary to include a provision in the 1977 Protocol I protecting the 
law-abiding members of the movement, probably because Article 44(1) thereof 
gives entitlement to prisoner-of-war status to all "combatants," except those who 
have allegedly violated the law of war prior to capture. These latter are, under 
Article 44(3) and (4), entitled to protections equivalent to those contained in the 
1949 Convention and the 1977 Protocol I, including specifically the judicial safe- 
guards. 



53 

not true. Inasmuch as compliance with all four of the conditions is 
"constitutive" in nature, 192 the failure of the organized resistance 
movement as a whole to meet the fourth condition makes it impossible 
for any of its members to qualify for prisoner-of-war status. This is 
one of the several instances where the individual member of an or- 
ganized resistance movement has only indirect and limited control over 
the factors which will determine his right to prisoner-of-war status 
in the event that he should fall into the power of the enemy. 193 

It is believed that the foregoing discussion has demonstrated the 
validity of the qualms earlier expressed concerning the problems in- 
herent in the interpretation and implementation of this aspect of 
Article 4 of the Convention. That the present author is not alone in 
questioning the possibility of a truly humanitarian interpretation and 
implementation of these provisions during a period of international 
armed conflict is obvious from the numerous works that have been 
written dealing with this subject, many of which have been noted. 

In 1971 the ICRC concluded that "the accent should be placed on" 
the third and fourth conditions : carrying arms openly and operating 
in accordance with the laws and customs of war. 194 It then went on 
to say that "throughout each military operation" the guerrilla in in- 
ternational armed conflict must "clearly mark his status as a com- 
batant" and that this could be done either by a distinctive sign or by 
carrying arms openly, the objective being to make it possible for any 
observer to discern immediately the fact that an individual is a com- 
batant and not a member of the civilian population. 195 

Article 38 of the 1972 Draft Additional Protocol proposed by the 
ICRC was an attempt to eliminate some of the problems discussed 
above. It provided that the resistance movement could belong to a 
"government or . . . authority not recognized by the Detaining Power" ; 
that in order to qualify, the resistance movement had to comply with 
the laws of armed conflict ; that in conducting military operations the 
members of the resistance movement had to show their combatant 
status by displaying their arms openly or had to distinguish themselves 
from the civilian population by a distinctive sign or by other means ; 



19 - 1971 GE Documentation, VI, at 14; Bindschedler 41. In other words, it is 
only by complying generally with all of the conditions that the organized resistance 
movement brings its members within the provisions of Article 4A(2) of the Con- 
vention. See also 1973 Commentary 51. For conduct which precludes recognition of 
the entire resistance movement as legal combatants, see note 161 supra. 

19: * See note 165 supra. Other instances are the requirements that the group be 
organized, that it belong to a Party to the conflict, and that it have a responsible 
commander. The individual would still be entitled to the protection of the last para- 
graph of Article 5 of the Fourth Convention. Stone, Legal Controls 566. 

194 1971 GE Documentation, VI, at 16. As the ICRC there notes these are the 
only two conditions mentioned in Article 4A(6) as requirements to qualify mem- 
bers of the levee en masse for prisoners-of-war status. See pp. 64-66 infra. 

™s Ibid., 17. 



54 

that they had to be organized and to have a responsible commander ; 
that individual violations would not forfeit the right of the other mem- 
bers of the resistance group to prisoner-of-war "treatment" ; 196 and 
that individuals not meeting these requirements would, as a minimum, 
receive the treatment provided for in Article 3 of the Convention 
(dealing with armed conflict not of an international character). 

Finally, Article 42 of the 1973 Draft Additional Protocol proposed 
by the ICRC, drafted after the intervening 1973 Conference of Gov- 
ernment Experts, while basically only a redraft of the 1972 proposal, 
had two major changes: the provision concerning the requirement of 
carrying arms openly or wearing a distinctive sign was changed to 
require merely "that they distinguish themselves from the civilian 
population in military operations" ; and members of the resistance 
movement guilty of violating the 1949 Conventions and the Protocol 
were to be given the protection of the judicial guarantees of the Con- 
vention "and, even if sentenced, retain the status of prisoners of 
war." 197 

Neither of these proposals adequately solves many of the problems 
which exist with respect to the attempt to bring the members of or- 
ganized resistance movements within the protection of the 1949 Con- 
vention ; nor does it appear that there is much likelihood of the drafting 
and general acceptance of any other useful substitute for the present 
provisions which are, for the most part, both ambiguous and compara- 
tively ineffective despite the fact that they have four times been 
adopted by the international community and now have three quarters 
of a century of international usage. 198 



196 If the word "treatment" was used as a synonym for the word "status," it was 
improperly used. "Prisoner-of-war treatment" is not legally the equivalent of 
"prisoner-of-war status." Rubin, Status of Rebels 479-80. It may be that the use 
here was intentional. See U.N., Human Rights, A/8781, para. 161. See also note 
256 infra. 

107 The latter provision is found in Article 42(2) of the 1973 Draft Additional 
Protocol. Presumably, it refers to violations of Article 13, 130, etc., of the Con- 
vention, offenses which constitute conventional war crimes, and not to a failure 
to meet the requirements of Article 42(1) of that Protocol. 1973 Commentary 
51-52. This provision would, then, merely reiterate the provisions of Article 85 
of the Convention. If this presumption is incorrect, it was indeed a strange pro- 
posal inasmuch as those who failed to meet the requirements for qualification for 
prisoner-of-war status, set forth in Article 41(1) of the Protocol, and were con- 
victed of being illegal combatants, would "retain" prisoner-of-war status! Article 
44 of the 1977 Protocol I is more clearly drafted. See note 191 supra. 

10S An excellent summary of the difficulties which confront the draftsman who 
attempts to solve the problem just discussed is to be found in Schwarzenberger, 
Human Rights 253, where the author says: ". . . any proposed change of the law 
in the direction of relaxing any of the existing conditions of the legality of irreg- 
ular armed forces and armed risings is unlikely to result in a greater protection 
of guerrilleros. If a belligerent must expect that in combat zones and occupied ter- 



DO 



Before leaving this subject it is appropriate to point out that the 
probability of controversy in areas involving the identification of per- 
sons entitled to prisoner-of-war status was not overlooked by the 
draftsmen of the Convention. During World War II the decision that 
an individual was not entitled to prisoner-of-war status had frequently 
been made summarily and by persons of very low rank. 101 ' There was 
no formal "recognition" process as such and, concededly, for the most 
part no such process was required. 200 Nevertheless, the problem had 
arisen on occasion — and it was not difficult to foresee thai a new and 
greatly enlarged provision on entitlement to prisoner-of-war status 
would correspondingly increase the number of problems arising in this 
area. Accordingly, the 1948 Draft Revised Convention contained a 
new and novel proposal which ultimately became the second paragraph 
of Article 5 of the 1949 Convention. That paragraph states : 

Should any doubt arise as to whether persons, having commit- 
ted a belligerent act and having fallen into the hands of the ene- 
my, belong to any of the categories enumerated in Article 4, such 
persons shall enjoy the protection of the present Convention until 
such time as their status has been determined by a competent 
tribunal. 201 
Obviously, this provision serves a double purpose: (1) it prohibits 
the procedure sometimes followed in the past of executing first and 



ritories daytime civilians become nighttime irregulars, he is likely to cease distin- 
guishing between genuine civilians and irregulars in civilian disguise and treat the 
whole of the civilian enemy population as potential — and unprivileged — belliger- 
ents. 

"More likely than not, excessive permissiveness in the redrafting of the relevant 
rules would merely lead to total repression practiced against guerrilleros and the 
civilian population alike." 

Moreover, as stated in Prugh, Current Initiatives 263: "They [humanitarian 
objectives] cannot be achieved by drafting protocols that will not stand up to the 
test of the battlefield, they cannot derive from conventions that few nations will 
sign, fewer ratify, and fewer still adhere to [i.e., comply with]." 

199 2B Final Record 270; Ford, Resistance Movements 377. 

200 When he made his study of prisoners of war immediately after World War 
II, Feilchenfeld concluded that "there is no such thing undei existing law as a 
formal 'recognition' of prisoners of war." Feilchenfeld, Prisoners of War 23. He 
went on to urge that "the growth of such a new institution should not be en- 
couraged. Every captive should enjoy the treatment of a prisoner of war until he 
is proved otherwise." Ibid. The draftsmen of the 1949 Convention apparently dis- 
regarded his admonition against institutionalizing the process of recognition of 
prisoner-of-war status, but did adopt the suggestion that all combatants falling 
into the power of the enemy should be afforded the protection of the Convention 
until their nonentitlement is formally established. 

- nl The provisions of this Article are, of course, applicable to the identification 
of persons allegedly falling within any of the various categories enumerated in 
Article 4. It is discussed at some length at this point because it is with respect to 
Article 4A(2) that the vast majority of cases requiring such a determination 
will arise. 



56 

investigating later — the individual who falls into the hands of the 
enemy is entitled to the protection of the Convention until the contrary 
is established ;-°- and (2) it provides for the determination of cases 
involving disputes as to the entitlement of individuals to prisoner-of- 
war status to be made by a "competent tribunal" — without, however, 
indicating exactly what is meant by the term.- 03 

When the Law of Land Warfare was issued by the United States 
Army in 1956, it stated that the "competent tribunal" should consist 
of "a board of not less than three officers." 204 Similarly, a Royal War- 
rant issued in 1958 included Prisoner of War Determination of Status 
Regulations which provide that in the British army the determination 
of the entitlement to prisoner-of-war status in questionable cases will 
be made by a "board of inquiry."- 05 Neither of these provisions had 



202 In legal jargon it would be said that there is a presumption of entitlement 
to prisoner-of-war status subject to rebuttal by the Detaining Power. While there 
is no indication as to where the ultimate burden of proof is placed, it would prob- 
ably be on the individual inasmuch as he is advancing the claim to a privileged 
status. See Public Prosecutor v. Koi, [1968] A.C. at 855. But see Baxter, Qualifica- 
tions 293-94. Article 45(1) of the 1977 Protocol I provides that a person who has 
participated in hostilities and who has fallen into the power of the enemy "shall be 
presumed to be a prisoner of war" and, therefore, entitled to the protection of the 
1949 Convention, "if he claims the status of prisoner of war, or if he appears to be 
entitled to such status, or if the Party on which he depends claims such status on 
his behalf." It further provides that if there is doubt as to his entitlement, he shall 
continue to have prisoner-of-war status until his actual status has been determined 
by a "competent tribunal." (See note 203 infra.) Article 45(2) of the Protocol 
provides that the decision as to entitlement to prisoner-of-war status shall be made 
by a "judicial tribunal" and that "[w]henever possible . . . this adjudication shall 
occur before the trial for the offence." (But see note 216 infra.) 

203 The provision first appeared as Article 4 of the Draft Revised Convention 
submitted by the ICRC to the 1948 Stockholm Conference (Draft Revised Conven- 
tions 55: "some responsible authority") and was there approved with minor editing 
(Revised Draft Conventions 53-54: " a responsible authority"). At the 1949 Diplo- 
matic Conference the wording moved to "by military tribunal or by a competent 
military authority with officer's rank" (2A Final Record 480), to "military tri- 
bunal" (ibid.), to "competent tribunal" (2B Final Record 270-72). It is clear that 
the term "competent tribunal" was not intended to limit jurisdiction to make the 
decision to the "regular" courts (2A Filial Record 563). Conversely, there is no 
reason to believe that a regular civilian court would not constitute a "competent 
tribunal." 

204 U.S. Manual para. 71(c). Note that the burden is placed on the individual 
to assert that he is entitled to prisoner-of-war status in order to activate the pro- 
cedure. Public Prosecutor v. Koi, [1968] A.C. at 855, 859. See note 202 supra. The 
U.S. Manual further provides [in para. 71(d)] tint if a board's decision is 
against entitlement to prisoner-of-war status, the individuals concerned still "may 
not be executed, imprisoned, or otherwise penalized without further judicial pro- 
ceedings to determine what acts they have committed and what penalty should be 
imposed therefor." 

205 British Manual, Appendix XXVII, First Schedule. The constitution and pro- 
cedeure of a "board of inquiry" is governed by the Army Act, 1955, and by the 
Rules issued thereunder. 



57 

ever been implemented or applied, and no reported use had been found 
for the provisions of the second paragraph of Article 5, during most 
of the international armed conflicts which have occurred since 1949. 206 
It was only in Vietnam, with its large-scale irregular warfare, that 
the problem assumed Homeric proportions which required the imple- 
mentation and application of the above-quoted provisions. As early as 
May 1966, the United States Army reacted to the problem of the need 
to have a formalized procedure for deciding the doubtful cases of en- 
titlement to prisoner-of-war status of individuals captured by its 
forces. It issued a directive on the subject 207 which was probably the 
first one issued by any armed force fully implementing the provisions 
of the second paragraph of Article 5. 208 

Briefly stated, the directive provided that when a detained person 
had committed a belligerent act and it was doubtful that he was en- 
titled to prisoner-of-war status, or it had been determined informally 
that he was not so entitled and he disputed this determination, his 
case would be referred to an "Article 5 tribunal" ; 209 the tribunal was 
to consist of three or more officers who should be, and at least one of 
whom was required to be, military lawyers; 210 the tribunal was di- 
rected to conduct a hearing in accordance with the procedure therein 
specified at which the person whose status was in question had a right 
to counsel ; 211 and the tribunal had to reach a decision as to entitlement 
or nonentitlement to prisoner-of-war status, a decision of entitlement 
being final, but a decision of nonentitlement being subject to legal 
review and an order for a rehearing or an administrative grant of 



206 Few disputes concerning the identity of individuals entitled to prisoner-of- 
war status occurred during the several Middle East armed conflicts or in the sev- 
eral Indo-Pakistani armed conflicts. In fact, in the armed conflict between India 
and Pakistan which occurred in 1971, some thousands of individual Pakistanis 
were categorized as prisoners of war who obviously did not fall within that class- 
ification. Levie, Indo-Pakistani Agreement 95 n.6. Even in Korea the problem was 
relatively minor. 

- 0T United States Military Assistance Command, Vietnam (MACV), Directive 
20-5, 17 May 1966, Prisoners of War-Determination of Status. This directive was 
subsequently refined and reissued on several occasions. The version to which ref- 
erence will be made herein is that of 15 March 1968 which is reproduced in part 
at 62 AJ.I.L. 768. 

208 In Military Prosecutor v. Kassem, decided in 1969, the Israeli Military Court 
said (42 I.L.R. at 472) : "We do not know whether a 'competent tribunal,' within 
the meaning of Article 5, has been set up in any part of the civilized world either 
under the Geneva Convention or any other international agreement." At that time 
the United States Army directive being used in Vietnam was almost three years 
old, had been redrafted and reissued on at least two occasions in the process of its 
refinement based on experience, and had probably been applied in a substantial 
number of cases. Unfortunately, it had received very little publicity. 

2on MACV Directive 20-5, 15 March 1968, para. 5f. 

210 Ibid., para. 6e(l) and Annex A, para. 3. 

211 Ibid., Annex A, particularly paras. 8 & 9. 



58 

prisoner-of-war status by the commanding general. 212 (This directive 
has been set forth in some detail because of the fact that it undoubted- 
ly broke new ground in the area of the determination of the entitle- 
ment of a particular individual to prisoner-of-war status. Of course, 
the value of such a directive depends largely upon the spirit in which 
it is applied. In this respect, unfortunately, little information appears 
to be available.) 1 ' 1 '■' 

Several proposals have been made with respect to the "judicial" de- 
terminations of entitlement to prisoner-of-war status. Thus, it has 
been suggested that any international agency created for the purpose 
of ensuring the protection of human rights in armed conflicts could 
also perform the functions of the "competent tribunal" of Article 5 ; 211 
and it has also been suggested that the determinations could be made 
by the use of a writ to a proposed "Special Tribunal of World Habeas 
Corpus." 215 Neither of these suggestions appears to be of a nature 
which would be acceptable to States. It does appear, however, that 
when the "competent tribunal," however established, finds against 
entitlement to prisoner-of-war status, there should be a required re- 
view procedure, even if it is no more than review of the file by a 
senior commander, or even by a specifically designated senior member 
of his staff. The membership of the tribunals will, in all probability, 
frequently include lower echelon and low-ranking combat officers who, 
understandably, will not be overly inclined to be generous towards a 
recent enemy. By requiring review by a senior commander of decisions 



21 - Ibid., para. 6g. The directive also provided for the reference to a tribunal of 
all cases in which an original informal classification as a prisoner of war was 
later challenged by the authorities of the Republic of Vietnam, the Power to whom 
custody had been transferred under Article 12 of the Convention, and the individ- 
ual concerned claimed that he had been properly classified. Ibid., Annex E. See 
Haight, Shadow War 49. 

213 The subject has not been mentioned in any of the Annual Reports of the 
ICRC issued during the relevant period. According to one author the ICRC Dele- 
gate in Saigon was highly complimentary of this and a parallel directive [United 
States Military Assistance Command, Vietnam (MACV)], Directive 381-46, 27 
December 1967, Military Intelligence: Combined Screening of Detainees). See 
Haight, Shadow War 47. 

214 U.N. , Human Rights, A/8052, para. 116. It has also been suggested that 
there should be a right of appeal to an international body when there has been 
an adverse decision made under proposed Article 42 of the 1973 Draft Additional 
Protocol. See para. 8(b) of the 1973 NGO Memorandum. (There is no indication 
in this Memorandum that the draftsmen were aware of the existence of the pro- 
visions of the lost paragraph of Article 5 of the Convention.) 

215 Kutner, World Habeas Corpus 744. It seems extremely unlikely that the very 
States with respect to which the need for third-party decision would be most 
compelling would ever become parties to a treaty creating an individual right of 
habeas corpus to an international tribunal. But see the McDougal & Reisman 
Working Document, "Establishing a Convention for World Writ of Habeas Corpus 
and Regional Courts of World Habeas Corpus." 



59 

adverse to the individual, there would be more assurance that a proper 
decision had been reached, while at the same time avoiding a procedure 
that would be completely unacceptable to many States — intervention 
on an international basis. 216 Of course, the individual would retain the 
protection of the Convention until any adverse decision had been 
finally approved by the reviewing authority. 

3. Members of Regular Armed Forces Who Profess Allegiance to a 
Government or an Authority Not Recognized by the Detaining 
Power 

Once again the 1949 Diplomatic Conference was attempting to sup- 
ply a rule which would cover situations which had caused numerous 
problems during World War II with its many "governments-in-exile" 
and, not infrequently, with competing such governments. 217 In June 
1944 the French Provisional Government, then located in Algiers, 
sought, through the ICRC, to ensure that prisoner-of-war status 
would be accorded to captured members of the "French Forces of the 
Interior" (FFI) fighting in occupied France in support of the Allied 
landing in Normandy. It was contended, and apparently not disputed, 
that these forces and their members conformed fully to the four con- 
ditions of the 1907 Hague Regulations and, thus, to Article 1 of the 
1929 Prisoner-of-War Convention. The German Government replied 
to the ICRC that "it has no knowledge of the existence of any Provi- 
sional Government at Algiers." 218 As such problems multiplied, the 
ICRC addressed a note to all of the belligerent States in which it 
said, in part, with respect to the entitlement to prisoner-of-war status 
of all persons who fell into enemy hands and who had complied with 
the four conditions : 



210 It will be recalled that the MACV directive provided for the type of review 
suggested herein. See text in connection with note 212 supra. Article 45(2) of the 
1977 Protocol I requires that "whenever possible" the adjudication of entitlement to 
prisoner-of-war status by the "judicial tribunal" should take place prior to the trial 
for the offense and, normally, in the presence of the Protecting Power. See note 
202 supra. There is no provision for review of the decision on status. It is believed 
that the adjudication of entitlement of prisoner-of-war status will, not infrequent- 
ly, have to be made by the court to which a case has been referred for trial of the 
substantive offense. This was the procedure followed in such cases as Public Pros- 
ecutor v. Koi; All and Another v. Public Prosecutor ; Military Prosecutor v. Kas- 
sem and Others; etc. 

217 See, e.g., 1 ICRC Report 525 n.l. 

21 » Ibid., 522. See note 156 supra. (While that particular episode involved the 
status of members of a resistance group, rather than of the regular armed forces, 
it is indicative of the problems which occur when a government participating in 
an international armed conflict is not recognized by the enemy Power.) Pictet says 
that the ICRC was successful in obtaining prisoner-of-war status for captured 
members of the uniformed de Gaulle armed forces in Africa and in Italy and for 
captured members of the regular Italian armed forces who fought the Germans 
under Badoglio after the 1943 Armistice. Pictet, Humanitarian Law 101. 



60 

The International Committee are of [the] opinion that the 
principles stated must be applied, irrespective of all juridical 
arguments as to the recognition of the belligerent status of the 
authority to whom the combatants concerned belong. 219 

The opinion so expressed became the basis for Article 3(2) of the 
Draft Revised Convention submitted by the ICRC to the 1948 Stock- 
holm Conference 220 which, with one major change, became Article 
4A(3) of the 1949 Convention. 221 

There is little question but that in such cases as the uniformed 
forces of the Danes, Dutch, French, Poles, etc., who continued to fight 
the Germans after the original defeats, each did profess allegiance 
to a "government" and, moreover, to a government which was not 
recognized by the Germans. 222 But what is the meaning of the term 
"authority" ? Apparently, it was intended to cover such contingencies 
as a goverment which had ceased to exist and had not been replaced, 
even by a "government-in-exile." 223 

One very interesting problem with respect to this provision has 
already been the subject of official discussion. Does the provision pre- 
clude trials for treason under domestic law where the individual has 
fought in support of a government installed in a country by the Oc- 
cupying Power? The Nordic Experts, no doubt concerned about future 
Quisling governments which might recruit forces to fight on behalf 
of the enemy, answered this question in the negative. 224 

4. Persons Who Accompany the Armed Forces without Actually 
Being Members Thereof 

Article 13 of the 1907 Hague Regulations provided that certain 
individuals who followed the armed forces without directly belonging 
to it ("such as newspaper correspondents and reporters, sutlers and 
contractors") and who fell into the hands of the enemy, were to be 
treated as prisoners of war provided they ivere in possession of a 
certificate from the military authorities of the army which they were 
accompanying. This article was carried over into Article 81 of the 
1929 Geneva Prisoner-of-War Convention. 225 Subsequently, with an 



219 1 ICRC Report, 518. 

220 Draft Revised Conventions 52. 

221 The original draft article contained a final clause which read "particularly 
if they act in liaison with the armed forces of one of the Parties to the conflict." 
Ibid. This clause was eliminated at Stockholm. Revised Draft Conventions 52. See 
also the comment contained in note 155 supra. 

222 It has been suggested that "there must be some recognition by third States." 
Draper, Recueil 114. 

22 3 2A Final Record 415. 
22 * Nordic Experts 166. 

22 5The French (official) versions of the 1907 Regulations and of the 1929 
Articles are substantially identical except for verb tense. 



61 

enlargement of the enumeration of categories and some other changes, 
this became Article 4A(4) of the 1949 Convention. 226 

The first of three additions to the enumeration of categories was 
"civilian members of military aircraft crews." This was, of course, a 
new phenomenon and one which was considered to include a sufficient 
number of individuals to warrant special mention. 227 The second ad- 
dition to the enumeration of categories was "members of labour units." 
During World War II questions arose, for example, concerning the 
status of civilians captured while working for the German Organisa- 
tion Todt in France. 228 It was apparently this type of individual for 
whom the added protection of specific reference was intended. And 
the third addition to the enumeration of categories was members of 
"services responsible for the welfare of the armed forces," Presum- 
ably this category would include entertainers, 229 civilian ambulance 
drivers, 230 and the like — individuals who are either temporarily or 
permanently concerned with the well-being of the troops. 231 (As a 
result of events in Vietnam, where a number of war correspondents 
covering that conflict were captured by the Vietcong and were then 
killed, or were captured by them and then disappeared, efforts were 
initiated to give members of the press exceptional protections, beyond 
that of prisoners of war. 232 Inasmuch as the Vietcong refused to apply 
the 1949 Convention, it is doubtful that the existence of any such new 
provision would have changed the course of events.) 



226 Apart from minor editorial changes, the paragraph adopted by the 1949 
Diplomatic Conference was that adopted the year before at Stockholm. Revised 
Draft Conventions 52. A British proposal, which was not adopted, would have 
completely eliminated the enumeration of categories. 3 Final Record 60-61 (Annex 
90). 

227 The Finnish representative proposed to eliminate the mention of this category 
on the ground that "civilians had no place in military aviation." 2A Final Record 
417. He was dissuaded by arguments which the Rapporteur did not consider it 
necessary to include in the record. Ibid. 

228 See Lewis & Mewha 214. 

229 ir or example, individuals brought into the combat area to entertain the troops 
by such entities as the United Services Organization (USO), an American organ- 
ization. 

230 p or example, the American Field Service of World War I and the Friends 
Field Service of World War II. 

231 In the past, some armies have provided prostitutes for their combat forces. 
Presumably, these ladies would fall within the compass of the provision under 
discussion. 

232 See, e.g., Protection of Journalists on Dangerous Missions in Areas of Armed 
Conflict,, G.A. Res. 3058, 28 U.N. GAOR, Supp. 30, at 73, U.N. Doc. A/9030 (1974). 
See also, Pilloud, Protection of Journalists on Dangerous Missions in Areas of 
Armed Conflict, 11 I.R.R.C. 3 (1971). Article 79 and Annex II of the 1977 Pro- 
tocol I are concerned with journalists. They appear to have added little to the 
provisions of Article 4A (4) of the 1949 Convention. 



62 

The problem presented by this provision for entitlement to prisoner- 
of-war status is not so much who falls within its provisions as how 
this fact is established. Each successive convention has included a 
proviso concerning identifying matter to be issued to these individuals 
by the armed force which they accompany. 233 A subtle change has, 
however, now been introduced into the language used. The 1929 Con- 
vention and its predecessor gave prisoner-of-war status to persons 
within the enumerated categories of civilians accompanying the army 
"provided they are in possession of a certificate from the military 
authorities." (Emphasis added.) Possession of the identity card was, 
then, a sine qua non to entitlement to prisoner-of-war status. What 
of the individual who has had such a certificate issued to him but who, 
for some reason, perhaps beyond his control, is no longer in possession 
thereof? 234 The Stockholm Draft made no change in the 1929 Conven- 
tion. 235 At the 1949 Diplomatic Conference the suggestion was made 
that the wording be changed so that an individual who had been issued 
a card but who no longer had it in his possession would not thereby 
be deprived of the protection of the Convention. 2?6 The ICRC repre- 
sentative pointed out that the Stockholm Draft continued to make the 
actual possession of the official identification card mandatory for en- 
titlement to prisoner-of-war status ; 237 and he later proposed an amend- 
ment to the paragraph which, it was agreed, established that if, in the 
absence of an identity card, the individual could prove that such a 
card had in fact been issued to him, this, too, would suffice to entitle 
him to prisoner-of-war status. 238 This proposal, with some editorial 
changes, was adopted. 239 Thus, the status of the civilian accompanying 
the armed forces is no longer dependent entirely upon the actual pos- 
session of an identity card issued to him by the military authorities 
of the armed force which he is accompanying; it is now dependent 
upon proof that he had received authorization from the military au- 
thorities to accompany that armed force — and that proof may consist 
of an identity card itself, or of some other evidence. 



233 The provision of the 1949 Convention goes a step further than heretofore by 
specifying that the identity card issued shall be "similar" to the model set forth 
in Annex IVA of the Convention. 

234 During World War II it was not uncommon for the capturing troops to take 
custody of identity cards along with all other documents in the possession of cap- 
tured individuals and this procedure can undoubtedly be expected in any future 
international armed conflict. For an analogous problem which reached gargantuan 
proportions, see note 111-29 infra. 

235 Revised Draft Conventions 52. The suggestion for change had been made and 
rejected. 1947 GE Report 113. 

236 2A Final Record 238. 

237 ibid., 250. 
238 /fcid., 416-18. 
239 Ibid., 389. 



63 

5. Member of Crews ... of the Merchant Marine and the Crews of 
Civil Aircraft of the Parties to the Conflict, Who Do Not Benefit 
by more Favorable Treatment under Any Other Provisions of 
International Law 

Chapter III (Articles 5-8) of the Eleventh Hague Convention of 
1907 provided that when a merchant vessel of a belligerent was cap- 
tured, the members of its crew who were enemy nationals were not 
to be made prisoners of war but were to be released upon making a 
formal promise not to undertake services connected with the opera- 
tions of war. This provision proved ineffective during World War I, 
and at the Diplomatic Conference which drafted the 1929 Geneva 
Prisoner-of-War Convention a proposal was made that the crews of 
captured enemy merchant vessels be considered to be prisoners of war. 
The proposal met with such a clear-cut rejection that a Conference 
report went to the extreme of including a negative — pointing out 
specifically that the crews of captured enemy merchant vessels were 
not included within the term "prisoners of war." 240 During World War 
II the provisions of the Eleventh Hague Convention of 1907 were again 
completely disregarded, 241 with the result that there was no assurance 
as to exactly what the status of a captured merchant seaman would 
be. 242 In order to remedy this situation, it is now specifically provided 
that merchant seamen will be prisoners of war. This applies to all 
members of the crew, officers and men. It also applies to the crews of 
civil aircraft, a category which was no doubt included because civil 
aircraft are more and more frequently used instead of merchant cargo 
vessels for quick deliveries to the combat area, and the position of the 
two types of crews is, so far as relevant, identical. It should also be 
noted that for the members of the crew to be entitled to prisoner-of- 
war status upon capture, the merchant vessel or civilian aircraft must 
fly the flag of a Party to the conflict. 243 



240 i ICRC Report 552; Scott, Reports 737. 

241 Perhaps because of the si omnes clause (2A Final Record 419), but more 
probably because it was not in the national interests of the Powers concerned. 

242 1947 GE Report 110-11 ; de La Pradelle, Nouvelles conventions 46. 

243 During the 1971 Indo-Pakistani hostilities neither government granted pris- 
oner-of-war status to the captured members of the crews of enemy merchant ves- 
sels. ICRC Annual Report, 1972, at 50. Article 4A(5) even contemplates the pos- 
sibility that these crew members may "benefit by more favorable treatment [than 
that to which they would be entitled as prisoners of war] under. . .other provisions 
of international law." In the light of actual State practice during two World 
Wars, this appears extremely unlikely. Tingling & Ginnane 405. 



64 

6. Inhabitants of a Nonoccupied Territory, Who . . . Spontaneously 
Take Up Arms to Resist the Invading Forces . . . Provided They 
Carry Arms Openly and Respect the Laws and Customs of War 

This is the so-called levee en masse 2 ** which first attained wide- 
spread attention in modern warfare in the Franco-Prussian War 
(1870-71), when many members of the civilian population of France 
rose up spontaneously to oppose the advance of the invading Prussian 
army. 245 It has been given institutional status by Article 10 of the 
unratified Declaration of Brussels of 1874 and by every convention on 
the law of land warfare which was subsequently adopted, 246 even 
though it has, as a practical matter, probably disappeared as a phe- 
nomenon of modern warfare. 247 However, because it has been included 
in the Convention and because historical incidents do have a way of 
recurring, it is deemed appropriate to mention some of the problems 
raised by this provision. 

The paragraph begins with the clause "inhabitants of a non-occu- 
pied territory" (emphasis added), a specification used originally in the 
1874 Declaration of Brussels and since maintained. It is a logical 
provision which, in effect, properly distinguishes between the attempt 
of the civilian population in unoccupied national territory to resist 
the forward movement into, and the occupation of, the homeland by 
the enemy army [the levee en masse of Article 4A(6)] and the oppo- 
sition mounted by the civilian population to the enemy army which 
has already occupied some or all of the national territory [the organ- 



244 There appears to be no well-recognized English translation of this term. 
"Mass levy" does not have the nuances of the French term. Lauterpacht calls it a 
"levy en masse," an unsatisfactory half-solution. Lauterpacht-Oppenheim 257. For 
discussions of the levee en masse, see Greenspan, Modern Law 62-64; Flory, Pris- 
oners of War 31-33. 

245 The Prussian army treated these members of the French civilian -population 
as francs tireurs (another untranslatable term), as illegal combatants, and sum- 
marily executed those who did not possess documentary identification from the 
French Government. See text in connection with note 162 supra. But see Lieber's 
Code, Article 51 and 52. 

246 Article 2, 1899 Hague Regulations; Article 2, 1907 Hague Regulations; note 
to Article 1, 1929 Prisoner-of-War Convention; and the captioned provision of the 
1949 Convention. 

247 2A Final Record 239 ; 1947 GE Report 107. This appears to be one of those 
cases where the draftsmen were not making law on the basis of the last previous 
war, as they are usually accused of doing, but on the basis of a war several times 
removed! (However, the levee en masse may have occurred in Crete during World 
War II. Swiss Manual para. 61n.) 



65 

ized resistance movement of Article 4A(2)]. 248 It is clear that the 
levee en masse can, by definition, legally exist only in territory not yet 
occupied. 249 

The paragraph continues with a requirement that the action of the 
civilian population be "spontaneous." Lauterpacht includes under the 
term levee en masse the situation which exists when a belligerent "calls 
the whole population of the country to arms." 250 This is very probably 
the origin of the term itself, inasmuch as the word levee implies an 
act by a qualified authority; but whatever it may have meant origi- 
nally, under the provision of the Convention spontaneity of action by 
the members of the civilian population (the "inhabitants") is required 
in order to bring captured individuals within the coverage of the 
Convention. 

The "four conditions" required in order to qualify captured mem- 
bers of organized resistance movements for prisoner-of-war status 
have already been discussed at length. 251 Here, logically, only the third 
(carrying arms openly) and the fourth (respect for the laws and 
customs of war) conditions are imposed as requirements for the quali- 
fication of a captured member of the levee en masse for prisoner-of- 
war status. 252 

A levee en masse will, as the very term itself indicates, be a mass 
action by a substantial part of the civilian population in the area which 
the enemy army is approaching. Under the circumstances, the advanc- 
ing army will have no way of identifying specific individuals as being, 



248 British Manual para. 97. A proposal to do away with the distinction was 
specifically rejected at the 1949 Diplomatic Conference. 2A Final Record 421-22 
& 435. The British Manual para. 89 n.8(a), appears to suggest a third possibility: 
the "spontaneous" organization of the civilian population and its attack on the 
occupying armed forces in conjunction with the advance of the national armed 
forces seeking to drive the enemy out of the homeland. This seems to resemble 
quite closely one of the major activities of any organized resistance movement op- 
erating against the Occupying Power. 

249 U.N. , Human Rights, A/7720, para. 87. Soviet International Law (at 423) 
lumps the two situations together. This could be an intentional effort to obfuscate 
which will permit the Soviet Union to justify advancing one contention if con- 
fronted again with a situation such as that of 1941-44 (enemy troops occupying 
Soviet territory), and the opposite contention if confronted with a situation such 
as that of 1945 (Soviet troops in enemy territory) . Miller, The Law of War 223. 

250 Lauterpacht-Oppenheim 257. This is what the Prussian Government did to 
resist Napoleon in 1813. Flory, Prisoners of War 31. However, this interpretation 
was specifically rejected at the 1949 Diplomatic Conference. 2A Final Record, 
420-21. 

251 See pp. 44-54 supra. 

252 British Manual paras. 89 (iii) & 97. For some inexplicable reason Lauterpacht 
has substituted the requirement of "some organization" for the requirement of 
carrying arms openly. Lauterpacht-Oppenheim 257. The substitution is particu- 
larly inappropriate because the Convention provision itself specifically includes 
reference to the fact that the inhabitants must have acted "without having had 
time to form themselves into regular armed units." 



66 

or not being, a part of the levee en masse. It will, therefore, in all 
probability, in its own defense, consider all of the inhabitants of the 
area as being included in the levee en masse 25 ' 3 and make prisoners of 
war of all such inhabitants whom it captures, thereafter denying 
prisoner-of-war status to those who, it determines, have failed to meet 
the requirements of the provision of the Convention. 254 A number of 
statements have been made to the effect that the enemy army would 
be justified in treating "all the males of military age as prisoners of 
war." 255 Under modern conditions, with women serving in the armed 
forces of a great many countries and otherwise demonstrating that 
they are competent and willing to handle a rifle or a grenade as ex- 
pertly as the male, it is extremely unlikely that the suggested action 
on the part of the enemy army would be limited to the men of the area 
involved. 

It was believed that two other general categories of individuals 
warranted specific coverage in the Convention in order to eliminate 
some of the obviously unjust actions which had been taken during 
World War II. These two categories are dealt with in Article 4B(1) 
and (2). 256 

7. Members of the Armed Forces of an Occupied Country 

During World War II the German armed forces occupied, wholly 
or in part, a substantial number of the States of continental Europe. 
In many such cases, the military personnel of the occupied country 
who had been captured or who had surrendered were released from 
custody and converted to civilian status ("demobilized") by the Ger- 
mans. Thereafter they were not considered to be entitled to the bene- 
fits and safeguards of the provisions of the 1929 Prisoner-of-War 



253 British Manual para. 99. 

254 The determination would, of course, have to be made in accordance with the 
provisions of the second paragraph of Article 5, discussed at pp. 55-59 supra. If 
the determination is against prisoner-of-war status, the individual concerned 
would usually fall within the provisions of Article 4 of the Fourth Convention and 
would be entitled to the protection of that Convention, subject, of course, to the 
right of the Occupying Power to try him for illegal acts of belligerency. 

255 British Manual para. 100; U.S. Manual para. 65; Greenspan, Modern 
Law 63. 

256 It is interesting to note that while paragraph A of Article 4 opens with the 
sentence "[p]risoners of war. . .are persons belonging to one of the following cate- 
gories. . . ," paragraph B opens with the statement "[t]he following shall likewise 
be treated as prisoners of war. . . ." (Emphasis added.) See note 196 supra. The 
ICRC representative at the discussion of this article at the 1949 Diplomatic Con- 
ference (Wilhelm) indicated that paragraphs A and B dealt respectively "with 
prisoners of war and with persons assimilated to prisoners of war." 2A Final 
Record 436. 



67 

Convention, even if they were again taken into custody. 257 If they at- 
tempted to escape to England to join the forces of their government- 
in-exile and were caught, they were severely punished, although as 
prisoners of war they would have been subject only to disciplinary 
punishment for "attempted escape." 258 

At the 1949 Diplomatic Conference the Soviet representative raised 
a question with respect to this procedure which, unfortunately, he did 
not put in the form of an amendment to be added to the provision 
then under discussion. He questioned whether an Occupying Power 
has the legal authority to "demobilize" the members of the armed 
forces of the occupied State, or whether all that the Occupying Power 
could do was to release prisoners of war from its custody without 
changing their legal status. 259 Clearly, as he indicated, only the gov- 
ernment of a State can change the status of members of its own armed 
forces. If an Occupying Power (or any other Detaining Power) re- 
leases prisoners of war from custody, this does not change their juri- 
dical status as members of the regular armed forces of their country ; 
and if they are subsequently taken back into custody by the Occupying 
Power, they would once again be prisoners of war. 260 A formal ac- 
knowledgment of the foregoing in the Convention could only have 
helped to clarify the matter. 

What the 1949 Diplomatic Conference did approve was a paragraph 
[Article 4B(1)] granting prisoner-of-war treatment to members of 
the armed forces of an occupied country who, while hostilities continue 
outside of the occupied territory: (1) are released by the Occupying 
Power and then are subsequently interned; or (2) are unsuccessful 
in an attempt to rejoin the armed forces to which they belong; or (3) 
fail to respond to a recall order of the Occupying Power, the purpose 
of which is to take them into custody. It is important to bear in mind 
that the foregoing provisions explicitly contemplate that the govern- 
ment of the unoccupied part of the territory of the State the members 
of whose armed forces are in question, or that State's allies if it has 
been completely occupied, are continuing the hostilities. The mere ex- 



257 Ibid. 431 ; British Manual para. 125 n.l. See German Regulations, No. 15, 
para. 116, which stated: "These persons are 'internees', regardless of whether 
they have previously belonged to the enemy armed forces, and include, for in- 
stance, released prisoners of war." (Emphasis in original.) 

- r » 8 Article 54 of the 1929 Convention. See In re Siebers, 17 I.L.R. at 399-400. 
For a discussion of the comparable provision of the 1949 Convention, see pp. 405- 
407 infra. 

259 2A Final Record 432. 

260 Of course, frequently this would be academic because the Occupying Power 
could certainly exert sufficient pressure on an indigenous government (such as 
the Vichy Government in France or the Quisling Government in Norway during 
World War II) or on a Chief of State in its custody (such as Leopold of Belgium 
during World War II) to obtain an order of demobilization. 



68 

istence of a government-in-exile after the complete cessation of hos- 
tilities would not suffice to make the provision applicable. In other 
words, this provision was not intended to apply to the situation which 
arises when the capitulation of a State is followed by the complete 
termination of armed hostilities. 201 It was apparently felt that this 
latter situation was adequately covered by the first paragraphs of 
Articles 5 and 118, the former making the Convention applicable "from 
the time they [covered personnel] fall into the power of the enemy 
and until their final release and repatriation," 262 and the latter requir- 
ing that prisoners of war "be released and repatriated without delay 
after the cessation of hostilities." 263 

8. Members of Belligerent Armed Forces in Neutral or 
Non-belligerent Countries 

The Fifth Hague Convention of 1907 contains provisions establish- 
ing the rights and duties of a neutral State with respect to members 
of the armed forces of a belligerent (Article 11-13), or the sick and 
wounded of the armed forces of a belligerent (Articles 14-15), who 
enter its territory during the course of the hostilities. 264 Article 4B (2) 
supplements those provisions, once again attempting to provide spe- 
cific solutions for problems that arose during World War II. 

Under general principles of international law, a neutral Power has 
no obligation to give asylum to troops attempting to enter its territory 
in order to avoid capture by the enemy, or to individuals who have 
escaped from prisoner-of-war camps and who attempt to enter its 
territory either as a place of refuge or as a lap in the route back 
home. 265 Under Article 11 of the Fifth Hague Convention of 1907 the 



261 The provision would, therefore, not apply in a situation such as that which 
existed upon the capitulation of Japan in 1945. 

262 Were it not for the provisions of Article 4B(1), an Occupying Power that 
released members of the armed forces of an occupied State from custody in the 
territory of their own country might well have contended that this was a "final" 
release pursuant to the first paragraph of Article 5 and that the individuals so 
"released and repatriated" were not thereafter entitled to the benefits and safe- 
guards of the Convention even if again taken into custody. 

263 Yingling & Ginnane 405-06. For unstated reasons, the United States repre- 
sentative unsuccessfully proposed the elimination of Article 4B(1). 2A Final Rec- 
ord 431-32. 

264 Article 15 of the Fifth Hague Convention of 1907 refers to "[t]he Geneva 
Convention." This reference was to the 1906 Geneva Convention for the Ameliora- 
tion of the Condition of the Wounded and Sick of Armies in the Field, later re- 
placed by the 1929 Convention of the same name and, still later, by the First Con- 
vention of 1949. 

2H5 When World War II ended, the Swiss Government closed its borders to 
escaped prisoners of war, while the Spanish Government admitted them. 1, ICRC 
Report 564-65. Each Government was completely within its rights in acting 
as it did. 



69 

neutral Power has an obligation to intern individuals falling within 
the first class mentioned immediately above when it does permit them 
to enter its territory. 266 Under Article 13 of that same Convention, the 
neutral Power must leave at liberty individuals falling within the sec- 
ond class mentioned immediately above when it does permit them to 
enter its territory, although it may assign them a place of residence. 267 
Article 4B(2) of the 1949 Convention only relates to the first class of 
individuals, as it specifies that it applies to the persons falling within 
the provisions of the overall Article 4 who are permitted to enter the 
neutral territory "and whom these Powers are required to intern un- 
der international law." 268 It provides that individuals so interned shall 
be "treated" as prisoners of war under the Convention, certain spe- 
cifically enumerated provisions thereof being excepted. 269 These ex- 
cepted provisions include Articles 8 (Protecting Powers), 10 (Substi- 
tutes for Protecting Powers), 15 (Maintenance), 30 (Medical Atten- 
tion), 270 58-67 (Financial Resources of Prisoners of War), 92 (Unsuc- 
cessful Escape), 271 and 126 (Supervision). 272 



266 This was a custom which was merely codified in the 1907 Convention. See, 
e.g., von Moltke, The Franco-German War of 1870-71 at 398-99; and Howard, 
The Franco-Prussian War 430-31 & 431 n.2. During the course of World War II 
well over 100,000 members of various belligerent armed forces were interned in 
neutral States. 1 ICRC Report, 557. Perrot, L'internment en Suisse (19A0-1941), 
23 R.I.C.R. 132. 

267 See pp. 404-405 infra. Switzerland and Sweden, the sole neutrals adjacent to 
belligerents, were the meccas sought by almost every escaped prisoner of war. 

268 Nordic Experts 166. Article 4B(2) of the 1949 Conventions refers to "neu- 
tral or non-belligerent Powers." The Fifth Hague Convention of 1907 refers only 
to "neutral Powers." "Nonbelligerency" is a comparatively recent phenomenon! of 
the law of international armed conflict. 

269 During World War II Switzerland and Sweden both replied negatively to an 
ICRC request that the 1929 Convention be applied to military internees. Switzer- 
land objected primarily because of the restrictions on the punishment which 
could be adjudged for attempted escape; and Sweden felt that it would impose un- 
necessary and complex problems on the neutral Power of refuge. 1 ICRC Report, 
559 ; 2A Final Record 244. 

270 Article 15 provides that the Detaining Power must provide maintenance and 
medical care "free of charge." The last paragraph of Article 30 provides that the 
cost of medical care "shall be borne by the Detaining Power." By eliminating 
these provisions as far as neutral Powers are concerned, Article 12 of the Fifth 
Hague Convention of 1907 remains applicable. This Article provides that on the 
conclusion of peace the expenses incurred by the neutral State "shall be made 
good." Presumably, this means that the neutral State will be reimbursed by the 
Power of Origin for all expenses incurred for the maintenance and medical care 
provided to its military internees. 

271 See note 269 supra. The other provisions of the Convention relating to penal 
and disciplinary sanctions (Article 82-108) are applicable to military internees. 
Baxter, Asylum 494. 

272 Article 126 is one of the provisions relating to visits to prisoner-of-war in- 
stallations by representatives of the Protecting Power and the ICRC. See pp. 281- 
284 and 309-311 infra. In view of the general practice followed during World War 



70 

Even though Articles 8 and 10, relating to the designation of 
Protecting Powers and their substitutes, are thus specifically stated 
not to be applicable under any circumstances, for some reason the 
draftsmen of the Convention found it appropriate to be redundant 
in this respect and to provide additionally in general terms that, where 
diplomatic relations continue to exist between the neutral Power and 
the Power of Origin of the interned military personnel (as they un- 
doubtedly will in most cases), the articles of the Convention with 
reference to the Protecting Power would be included among the ex- 
cepted provisions; 273 and that, in this event, the Power of Origin is 
itself authorized to perform the functions of the Protecting Power. 274 
This latter procedure appears both logical and adequate, as there cer- 
tainly can be no question but that the diplomatic representatives of 
the Power of Origin will be capable of, and motivated toward, super- 
vision of the treatment which their interned fellow nationals are re- 
ceiving in the territory of the neutral Power. It is regrettable, how- 
ever, that by including Article 126 among the excepted articles, the 
ICRC, with its wealth of expertise, has been deprived of the right to 
visit the military internee camps located in the territory of neutral 
Powers which maintain diplomatic relations with the Power of Ori- 
gin. 275 

9. Medical Personnel and Chaplains 

The final paragraph (Article 4C) admonishes that the provisions 
of that Article "shall in no way affect the status of medical personnel 
and chaplains." A discussion of the significance of this provision ap- 
pears also to provide an appropriate point for a brief review of the 
cognate provisions of the First and Second Conventions relevant to 
the status of the wounded, sick, shipwrecked, members of the medical 
profession, and chaplains — on land and sea — when they fall into the 
power of the adverse Party. 

Both the First and Second Conventions contain an Article 13 which 



II of permitting ICRC visits to military internee camps in neutral States (1 ICRC 
Report 560-62), it is difficult to understand why Article 126 was included among 
the exceptions. 

273 3 Final Record, Annexes 91 and 93, at 62; 2A Final Record 466. 

274 But Article 126, probably the most important article with respect to the func- 
tions of the Protecting Power, has been specifically excepted. See note 272 sapra. 
Surely, this does not mean that visits to military internee internment installations 
are to be omitted from the functions of the Protecting Power which are to be per- 
formed by the representatives of the Power of Origin. 

27n It should be mentioned that Article 9, the Article which establishes the basic 
international juridical status of the ICRC under the Convention, is not among the 
excepted articles and it may be that the ICRC could use this and other provisions 
to support the argument that, just as it may normally operate in parallel with the 
Protecting- Power, here it may so operate with the Power of Origin. 



71 

is identical with Article 4A of the Third Convention. 276 Article 14 of 
the First Convention (Article 16 of the Second) provides that "the 
wounded and sick [and shipwrecked] of a belligerent who fall into 
enemy hands shall be prisoners of war." 277 This means that the Third 
Convention is applicable in its entirety to any individual who comes 
within any of the classifications established by Article 4 A (or its iden- 
tical counterparts, Article 13 of the First and Second Conventions), 
and who, while wounded, sick, or shipwrecked, falls into the hands 
of the enemy. Actually, it would appear that these articles were in- 
cluded in the First and Second Conventions from an excess of caution 
inasmuch as, even without them, the individuals concerned would have 
come within the purview of Article 4A of the Third Convention. If an 
individual is, for example, a member of the regular armed forces of a 
belligerent, the fact that he was wounded or sick at the time that he 
fell into the power of the enemy could scarcely affect his entitlement 
to prisoner-of-war status. It is therefore obvious that the only prob- 
lems which will arise in this respect are those which have already been 
discussed and which will arise whether the individual who falls into 
the power of the enemy is hale and hearty, wounded or sick, conscious 
or unconscious. The unique problems which arise in this area arise 
not with respect to the patients, but with respect to the people whose 
function it is to care for them. 278 Medical personnel, and the assisting 
staff, engaged exclusively in the collection, transport, and treatment 
of the wounded and sick, or in the prevention of disease, are entitled to 



276 The First Convention is concerned with the wounded and sick of land armies; 
the Second is concerned with the wounded, sick, and shipwrecked at sea. As the 
provisions of these two Conventions that are of interest here are largely identical, 
all references will be solely to the First Convention and its provisions except where 
specific reference to the Second Convention is deemed appropriate. The First Con- 
vention of 1949 is the fourth chronologically (1864, 1906, 1929, and 1949) of the 
series known as the "Red Cross" Conventions. Prior to 1949 they had been made 
applicable to naval warfare by "adaptation" treaties (Third Hague Convention of 
1899 for the Adaptation to Maritime Warfare of the Principles of the Geneva Con- 
vention of August 22, 1864; and Tenth Hague Convention of 1907 for the Adapta- 
tion of the Principles of the Geneva Convention [of 6 July 1906] to Maritime 
Warfare ) . 

277 The Coordination Committee of the 1949 Diplomatic Conference, charged with 
coordinating the language and substance of the several conventions being drafted, 
failed to note that at Stockholm the year before the term "fallen into enemy hands" 
in the Third Convention had been changed to "fallen into the power of the enemy." 
See p. 34 supra. 

278 See generally, Watson, Status of Medical and Religious Personnel in Inter- 
national Law, 20 JAG J. 41. For the most part medical personnel and chaplains 
are dealt with together in this area of the Conventions. See, e.g., the first two para- 
graphs of Article 33 of the Third Convention. Accordingly, references in the text 
hereof to medical personnel should be construed as including chaplains unless the 
wording used clearly indicates otherwise. 



72 

be respected and protected at all times. 279 When they fall into the power 
of the enemy, they are not prisoners of war — but they are entitled, 
as a minimum, to the benefits and protections of the Third Conven- 
tion; 280 they may be retained by the Detaining Power only to the 
extent that their services are required for the care of prisoners of 
war; 281 while their services are so used, the Detaining Power must 
afford these "retained personnel" the opportunity and the facilities 
for performing their professional functions ; 282 and the Detaining Pow- 
er has an obligation to release them and to return them to their Power 
of Origin if their retention is not "indispensable." 283 

The 1929 Wounded-and-Sick Convention provided for the return of 
medical personnel "as soon as the way is open for their return," 
absent an agreement to the contrary between the Detaining Power 
and the Power of Origin. 284 A number of such agreements were 
reached ; 285 and very few retained persons were ever returned to their 
Power of Origin during the course of hostilities. 286 Realizing that 
similar problems would be presented by the very provisions that it was 
including in the new First Convention, the 1949 Diplomatic Conference 
adopted a resolution which requested the ICRC to draft model agree- 
ments implementing Articles 28 and 31 of the First Convention, deal- 
ing with the relief and retention of medical personnel and chaplains. 287 



279 Article 24, First Convention; Article 37, Second Convention. The latter pro- 
vides that the retained "religious, medical and hospital personnel" are, upon land- 
ing, subject to the provisions of the First Convention. 

280 First paragraph, Article 33, Third Convention; second paragraph, Article 28, 
First Convention. Pictet, Commentary on the First Convention 243. 

281 The prisoners of war for whom their professional services are required 
should be "preferably those of the armed forces to which they themselves belong." 
Second paragraph, Article 28, First Convention. 

282 See the first two paragraphs of Article 33, Third Convention. The author was 
told by several officers of the Pakistani Army Medical Corps that after two em- 
bryonic escape tunnels (with which they had had no connection) were discovered 
by the authorities at their prisoner-of-war camp in India in the spring of 1972, 
the seven retained medical officers were no longer permitted to perform their pro- 
fessional functions on behalf of the prisoners of war. Nevertheless, they were only 
released by the Indian authorities a year and a half later, in February 1974, as a 
part of the general repatriation. This was, of course, a blatant violation of Articles 
28 and 30 of the First Convention and of Articles 4C and 33 of the Third Con- 
vention. 

283 Article 30, First Convention. 

28 ^ Article 12, 1929 Wounded-and-Sick Convention. 

28 5 1 ICRC Report 202; Rich, Brief History 497-98. 

28 <s 1 ICRC Report 202; 1947 SAIN 5. 

2S7 Resolution 3, 1 Final Record, 361. Article 31 of the First Convention provides 
for special agreements concerning medical personnel "to be retained"; Article 28 
of the First Convention and the third paragraph of Article 33 of the Third Con- 
vention both provide for special agreements concerning the relief of retained 
personnel. 



73 

The ICRC did so, 288 but, of course, this merely means that models 
exist and will be available for possible use when the occasion arrives. 
Whether, and to what extent, States will make use of them will only 
become evident in the event. The ICRC itself has said that "[i]t can 
be foreseen that, in a future conflict, retention will become the rule." 289 

Individuals who, although trained in a medical or dental profession, 
are not attached to the medical service of the armed force in which 
they are serving at the time that they fall into the power of the adverse 
party may, nevertheless, be required by the Detaining Power to per- 
form medical functions on behalf of prisoners of war who depend on 
the same Power of Origin that they do. While they are so engaged, 
they are entitled to the same treatment as retained personnel, and 
they cannot be required to do any other work. However, they continue 
to be prisoners of war. 290 

In most armies there are a number of functions that are performed 
by individuals who are not normally involved in combat. These indi- 
viduals frequently have a secondary duty to act as stretcher-bearers 
and emergency medical personnel in time of need. 291 If they fall into 
the power of the enemy while they are engaged in their primary func- 
tions, they are, of course, ordinary prisoners of war. However, if they 
fall into the power of the enemy while actually engaged in medical 
functions, although they are prisoners of war, their employment in a 
prisoner-of-war camp is to be on medical duties "in so far as the need 
arises. ' ,292 There is no indication as to the method by which a prisoner 
of war will be able to establish the exact function that he was per- 
forming at the time when he fell into the power of the enemy. 

One problem in the medical personnel area which was not covered in 
the 1929 Wounded-and-Sick Convention, and which is only tangentially 
covered in the 1949 Conventions, concerns the disciplinary powers of 
the Detaining Power when medical personnel act improperly. During 
World War II the Germans issued an order providing that attempted 
escapes by medical personnel could be punished by "a temporary or 
permanent suspension of their privileges, in full or in part." 293 There 
was probably no legal basis for the issuance of this order, but cer- 
tainly the Detaining Power has to have some power of discipline. 



- 88 ICRC, Model Agreement. 

2 89 Ibid, at 8 (Trans, mine) . 

290 Article 32, Third Convention. 

291 For example, bandsmen, mess personnel, clerks, etc. For a problem of iden- 
tification encountered during World War II, see Rich, Brief History 517. 

2»2 Articles 25 and 29, First Convention. 

293 German Regulations, No. 6, para. 5. One writer has raised the issue of the 
effect on medical personnel of the United States armed forces of the provisions of 
the so-called Code of Conduct, Sec. Ill of which makes it the duty of any member 
of the United States armed forces who has been captured to "make every effort to 
escape." Smith, Code of Conduct 98-99. 



74 

Article 33(c) of the Third Convention now provides that these indi- 
viduals are "subject to the internal discipline of the camp in which 
they are retained." 294 It would therefore appear that they could now 
legally be disciplined for attempted escape to the same extent as a 
prisoner of war. 295 But what of the physician in the power of the 
enemy who, perhaps for some ideological reason, refuses to perform 
any professional duties and will not provide medical treatment for the 
sick and wounded members of the armed forces of his own Power of 
Origin? This was the procedure followed by most of the North Viet- 
namese medical personnel captured in Vietnam. 296 The South Viet- 
namese responded by treating them as ordinary prisoners of war. 297 
Once again, there was probably no specific legal basis for such action ; 
but certainly, if a member of the medical profession refuses to employ 
his professional abilities, even for the benefit of his own countrymen, 
he is denying his professional status and, under those circumstances, 
there is little that a Detaining Power can do except to remove him 
from the category of a retained person and to place him in a general 
prisoner-of-war status (unless his recalcitrance is to be rewarded by 
repatriation). 

10. Problems of General Import 

There are a number of categories of individuals concerning whom 
special problems arise when they fall into the hands of a belligerent 
Power ; and while in some such categories the numbers of individuals 
involved have been comparatively small, nevertheless the problems 
which they create are considered worthy of mention. 

a. NATIONALITY 

Normally, the nationality of the individual falling within one of the 
categories enumerated in Article 4 is that of the belligerent Power for 



294 The Article goes on to prohibit the Detaining Power from compelling them to 
do any work other than medical or religious. The provision quoted in the text refers 
only to disciplinary matters (Articles 89-98, Third Convention. See pp. 324-330 
infra. Presumably, there is no question of the right of the Detaining Power to im- 
pose penal sanctions for crimes (Articles 99-108, Third Convention). See pp. 330- 
342 infra. 

295 See Articles 91-94, Third Convention, and the discussion thereof at pp. 403- 
407 infra. 

296 Actually, those doctors who refused to function in their professional capaci- 
ties probably did so because of specific orders received before capture, orders based 
upon the desire to place a greater burden on the medical facilities of the armed 
forces in South Vietnam. 

297 Vietnam, Article-by- Article Review, Article 32. In Korea many of the cap- 
tured North Korean medical personnel had participated in the prisoner-of-war 
camp mutiny conspiracy. U.N.C., Communist War, part II, sec. B, para. 10, at 16. 
No action was taken against them. 



75 

which he is fighting. 208 However, he may have the nationality of a 
neutral, or of an ally of the belligerent in whose armed forces he is 
serving at the time that he falls into the power of the enemy — or even 
of the adverse Party, or one of its allies. Does this affect his entitle- 
ment to prisoner-of-war status? Apparently there is no dispute with 
respect to the entitlement to prisoner-of-war status of an individual 
who is a national of a neutral State or of a State which is an ally of the 
belligerent in whose armed forces he is serving. 299 However, the en- 
titlement to such status of an individual who is a national of the Cap- 
turing Power, or of one of its allies, 300 is the subject of dispute. 

Several writers, notably Lauterpacht, have taken the position that 
the national of the Capturing Power who falls into its power while 
serving in the armed forces of the enemy is not entitled to prisoner- 
of-war status or to the protection of international law. 301 This position 
has been cited and approved by the Privy Council 302 in a decision 
which has been the subject of criticism. 303 Certainly, the individual 
concerned could be tried for treason under the municipal law of the 
Capturing Power whose nationality he carries ; but this does not mean 
that he is not entitled to the protection of prisoner-of-war status at 



298 This is undoubtedly the basis for the invention of the term "Power of Ori- 
gin" to indicate the Power upon which the prisoner of war depends, although it 
may, in a particular case, be a complete misnomer. 

299 Flory, Prisoners of War 33-35; Lauterpacht-Oppenheim 261; Greenspan, 
International Law 32; Elman, Prisoners of War 180. In German Regulations, No. 
32, para. 513, the German order said: 

513. U.S. prisoners of war in British uniforms. Prisoners of war of U.S. 
nationality captured as members of Canadian armed forces are considered 
British prisoners of war regardless of whether they joined the Canadian 
services before or after the entry of the United States into the war. 

The German orders on this subject systematically followed the principle that the 
nationality of the individual for prisoner-of-war purposes was decided by the 
uniform which he was wearing at the time of his capture. Ibid., No. 1, para. 1; 
No. 13, para. 56; No. 32, para. 513; No. 33, para. 561. This was also the position 
of the United States. See 12 Dept. State Bull. 864 (1945). 

300 No specific discussion has been found of the problem involved when the 
captured individual is a national of an ally of the Capturing Power. However, this 
would probably make no difference as the Capturing Power could transfer the 
individual to its ally under Article 12 of the Convention and the individual would 
then be in the custody of his own nation as Detaining Power. 

301 Lauterpacht-Oppenheim 268. See also Flory, Prisoners of War 29-30. The 
latter emphasizes that the contrary is true if the individual has been naturalized 
by the belligerent State in whose armed forces he was serving at the time of 
capture. Dual citizenship in the two opposing belligerents would also present a 
problem under Lauterpacht's thesis. 

302 Public Prosecutor v. Koi. 

303 Baxter, Qualifications 291-94 ; Elman, Prisoners of War 180-95. 



76 

least up to and during the trial.- 304 

The problem has been adverted to by the courts of the United States 
on two separate occasions. Writing in 1942, the United States Supreme 
Court said : 

. . . Citizens [of the United States] who associate themselves with 
the military arm of the enemy government . . . are enemy bellig- 
erents within the meaning of the [Fourth] Hague Convention [of 
1907] and the law of war. 305 
And in 1946, in a case involving an Italian prisoner of war who had 
sought habeas corpus on the ground that he was an American citizen 
and that he could not, therefore, be held as a prisoner of war by the 
United States, the United States Court of Appeals said: 

We have reviewed the authorities with care and we have found 
none supporting the contention of petitioner that citizenship in 
the country of either army in collision necessarily affects the 
status of one captured on the field of battle. 306 
It is believed that the principle to be extracted from these two opinions 
expresses the proper rule of international law, and that any individual 
who falls into the power of a belligerent while serving in the enemy 
armed forces should be entitled to prisoner-of-war status no matter 
what his nationality may be, if he would be so entitled apart from any 
question of nationality; subject to the right of the Detaining Power 
to charge him with treason, or a similar type of offense, under its 
municipal law and to try him in accordance with the guarantees con- 
tained in the relevant provisions of the Convention. 307 

b. DESERTERS AND DEFECTORS 
There has been much confusion in the use of these and related 
terms. 308 In the discussion which follows, the word deserter is used to 



r504 Lauterpacht said: "The privileges of members of armed forces cannot be 
claimed by. . .traitorous subjects of a belligerent who, without having been mem- 
bers of his armed forces, fight in the armed forces of the enemy. . . ." Lauter- 
pacht^Oppenheim 268. If he refers solely to the right of the Detaining Power to 
try them for treason under its municipal law, he is correct. However, if he would 
deny them the protection of the Convention from the very outset of captivity, 
then it is believed that the quoted statement no longer represents the international 
law rule, the Privy Council in Public Prosecutor v. Koi to the contrary notwith- 
standing. Elman, Prisoners of War 180 & 184. See also Wilhelm, Status 32-34, 35 
R.I.C.R. at 686-87. 

' 5 °5 Ex parte Quirin, 317 U.S. at 37-38. 

306 In re Territo, 156 F.2d at 145. This case was found to be unpersuasive by 
the Privy Council in Public Prosecutor v. Koi. 

:{0 ' See pp. 330-342 infra. 

r?08 Thus, when Garcia-Mora writes at length concerning deserters, it is patent 
that the individuals to whom he is referring are actually those who will be here 
referred to as defectors. Garcia-Mora, Asylum 103-07. The same confusion is 
found in Clause, Status 34-35. Although it is believed that he errs in other re- 



77 

connote one who absents himself from his place of duty without the 
permission of his proper authorities. In the context of this study he 
thereafter comes into the custody of the enemy armed forces, perhaps 
by voluntary surrender, seeking the dubious refuge of a prisoner-of- 
war camp primarily as a means of escaping from the fears and dangers 
of the battlefield. 309 His change in status is motivated by a lack of 
amenability to military life in general, and to combat in particular, 
and not by ideology. The word defector, on the other hand, is used to 
connote one who deliberately seeks refuge with the enemy because he 
disagrees with the policies and politics of his own Government and 
agrees with those of the enemy. 310 He is motivated by ideological con- 
siderations, and when he leaves his place of duty he probably desires 
and intends, if possible, to join the enemy armed forces in order to 
help hasten the attainment of his ultimate objective: the victory of 
the enemy and the defeat of his own country. Obviously, both these 
categories involve some identical and some different problems. 

The deserter, like any other member of the regular armed forces of 
his country who falls into the power of the enemy, becomes a prisoner 
of war. 311 The fact that he deserted and, perhaps, on his own initiative, 
sought an opportunity to surrender does not change his position under 
international law and, insofar as the Capturing Power is concerned, 
whatever may be his legal status under the civil and military law of 
his own country. One man, wounded, surrenders because he is physi- 
cally unable to continue to fight ; another man, a deserter, surrenders 
because he has lost the will to fight. The reason 'for the surrender is 
immaterial. Both of these men, as members of the regular armed forces 
of their country, come within the provisions of Article 4A(1) of the 



spects, Hess draws the proper and necessary distinction between deserters and 
defectors. Hess, Post-Korea 55. So, too, do Esgain & Solf 555. 

309 The deserter does not necessarily come under the power of the enemy. He 
may seek refuge in a neutral country; or, if he is located in his own national ter- 
ritory, or in territory contiguous to his own national territory, he may return 
home or seek to lose himself among the civilian population. 

:uo p or this reason, one author writing shortly after World War I speaks of 
defectors as "refugees." Fooks, Prisoners of War 83. A SEATO directive defines 
a defector as follows: 

A defector. . .is any person who is voluntarily or involuntarily serving the 
enemy, either as a member of its Armed Forces or otherwise, who voluntarily 
terminates his service to the enemy for the purpose of bearing arms on 
behalf of SEATO, or to otherwise assist the SEATO cause, and who immed- 
iately upon capture or submission to SEATO control, gives express notice 
that he no longer desires to serve the interests of the enemy state. 

SEASTAG No. 2033, Interrogation of Captured or Otherwise Detained Personnel 
(CDP), AnnexC, para. 4 (1970). 

311 Flory, Prisoners of War 30. 



78 

Convention and are entitled to prisoner-of-war status. 312 

It has been suggested that the deserter is not entitled to prisoner- 
of-war status on the basis of either of two arguments: (1) that the 
failure to mention deserters specifically in the enumeration contained 
in Article 4 was a deliberate omission; 313 and (2) that deserters do 
not "fall" into the power of the enemy. 314 The first argument is un- 
convincing because the member of the armed forces who deserts and 
surrenders to the enemy is, neverthless, a member of the armed forces 
within Article 4A(1) of the Convention; hence, it was no more neces- 
sary to include deserters as specifically being within that category 
than it was to include cooks, artillerymen, or noncommissioned officers, 
all of whom are equally members of the armed forces. And the second 
argument is also unconvincing because, as we have seen, 315 the words 
"fallen into the power of the enemy" were substituted for the word 
"captured," previously used, precisely in order to ensure prisoner-of- 
war status to those who surrender voluntarily. 

One other problem remains with respect to deserters who surrender 
to the enemy — their disposition upon the cessation of active hostilities. 
Historically, for obvious reasons, they were not repatriated upon the 
termination of hositilities. However, this policy changed during the 
nineteenth century. 316 Under the 1949 Convention the Detaining Power 
would be required to repatriate all prisoners of war, including de- 
serters, upon the cessation of active hostilities. However, if the policy 
of "voluntary repatriation," and "no forcible repatriation," can be 
considered as a proper interpretation of Article 118, and as indicative 
of the manner in which belligerents will interpret and apply Article 
118 as a matter of practice — and it is believed that it is 317 — the de- 
serter could, and presumably in most cases would, elect to decline to be 
repatriated. 

A defector has been defined above as one who seeks refuge with the 
enemy because, in effect, ideologically he supports its objectives and 
opposes those of his own country. As a member of the armed forces 



312 So-called surrender leaflets — leaflets released behind enemy lines by artil- 
lery shells or by air drops encouraging surrender — usually promise good food and 
good treatment as prisoners of war in a comfortable prisoner-of-war camp far 
removed from the perils of war, promises which are not always kept. Shub, The 
Choice 63-64. 

313 Clause, Status 16; Garcia-Mora, Asylum 103-04. 
3 « Wilhelm, Status 29, 35 R.I.C.R. at 682. 

815 See pp. 34-36 supra. 

u ' 5 Garcia-Mora, Asylum 104. He further states that the practice of incorporat- 
ing amnesty clauses in peace treaties gave the necessary protection to repatriated 
deserters. Ibid. This may have been true at one time but it certainly is not so at 
present. 

:n ~ Sec the discussion of voluntary versus involuntary repatriation at pp. 421-426. 
infra. Sec generally, Schapiro, Repatriation 310-11; Garcia-Mora, Asylum 103-06; 
Clause, Status, passim. 



79 

of his country he, too, has a right to prisoner-of-war status ; and under 
Article 7 of the Convention this is a right which he cannot renounce. 318 
However, there have been numerous occasions upon which defectors 
have affirmatively sought, or have been encouraged, to serve in the 
armed forces of the Detaining Power. 319 To permit them to do so is a 
violation of Articles 4, 5, and 7 of the Convention. 320 This does not 
mean that defectors may not voluntarily assist the Detaining Power 
while remaining prisoners of war. They may, for example, without 
bringing the Detaining Power into conflict with the provisions of the 
Convention, act as interpreters, draft surrender leaflets, 321 write radio 
propaganda scripts, give indoctrination lectures, and even act as under- 
cover informers on their fellow prisoners of war. 322 Defectors were 
permitted to give up their prisoner-of-war status and to join the armed 
forces of the Detaining Power during World War I 323 and World War 
j j 324 This was one of the major reasons for the inclusion in the Con- 



318 s ee pp. 9i_93 infra. 

319 Article 130 makes it a grave breach of the Convention to compel a prisoner 
of war "to serve in the forces of the hostile power." See pp. 361-363 infra. 

320 Under Article 4A(1) they are, upon falling into the power of the other side, 
prisoners of war. Under Article 5 this status continues from the time of falling 
into the power of the other side until "final release and repatriation." And under 
Article 7 prisoners of war may not renounce in part or in their entirety the 
rights secured to them by the Convention. 

321 During the armed conflict in Korea (1950-53) a question arose within the 
United Nations Command (U.N.C.) concerning the legality of the use of Chinese 
prisoners of war who had volunteered to draft surrender leaflets to be dissemi- 
nated among the members of the "Chinese People's Volunteers." The decision 
reached was that they could be given this task but that it would be necessary to 
notify the ICRC (the de facto Protecting Power for prisoners of war captured by 
the U.N.C.) of their location as a work detachment so that the ICRC could con- 
tinue to assure that only true volunteers were being so used. 

322 The North Koreans and the Chinese both made extensive use of this latter 
technique during the armed conflict in Korea. U.S. POW 27; U.K. Treatment 20; 
Schein, Patterns 257; Anon., Misconduct 727-28. It is, of course, extremely de- 
moralizing to the great body of prisoners of war who are and remain loyal to 
their own country, so it serves a dual purpose for the Detaining Power. It was 
a major reason for the promulgation by the President of the United States of the 
Code of Conduct for Members of the Armed Forces of the United States, Sec. IV 
of which is a direct attempt to reduce participation in this type of activity by 
members of the armed forces of the United States who become prisoners of war. 
Prugh, Code of Conduct 687-88. 

32.3 p or example, the German-created "Irish Brigade" composed of captured 
Irish members of the British armed forces. U.S., POW 55-56. See p. 361 infra. 

324 The Soviet Union created units of captured Germans, the Germans created 
units of captured Russians, etc., etc. See Harrison, Cross-Channel Attack 145. 
Concerning the recruitment of Indian prisoners of war by the Germans and by 
the Japanese during World War II, see Calvocoressi & Wint 804-05 & 806-09. (It 
should be noted, however, that in both World Wars the majority of the individuals 
who served in the enemy's armed forces after having been captured were not ori- 



80 

vention of the provisions of Article 130, prohibiting involuntary, and 
Article 7, effectively prohibiting voluntary, service by a prisoner of 
war in the armed forces of the Detaining Power. 325 

The defector, then, like the deserter, is a prisoner of war and the 
1949 Convention, with all its prohibitions and safeguards, is fully ap- 
plicable to him. 326 Obviously, the question of whether he is to be repa- 
triated upon the cessation of active hostilities is even more important 
to him than it is to the deserter, particularly if he has been permitted 
to serve in the armed forces of the Detaining Power. Once again, it 
would appear that this question presents no problem if legal and 
humanitarian considerations require that Article 118 be so interpreted 
as to permit each prisoner of war to make his own personal determina- 
tion as to whether he desires to be repatriated, particularly when it is 
obvious that his repatriation inevitably means either a very long term 
in prison or even a death sentence. 327 

It must be emphasized that the foregoing discussion of deserters and 
defectors is strictly from the point of view of international law in 



ginally defectors but were ordinary prisoners of war who were induced by prom- 
ises, or by more forcible methods of persuasion, to join the Detaining Power's 
armed forces.) See also note VI-79 infra. 

325 During the armed conflict in Korea the North Koreans justified the disap- 
pearance of literally tens of thousands of admittedly captured members of the 
Republic of Korea Army by insisting that after "reeducation" they had all elected 
to join the armed forces of North Korea. See note VI-81 infra. In Vietnam both 
sides "reeducated" their captives and then inducted them into their respective 
armed forces. The "Chieu Hoi" ("open arms" or "welcome return") program of 
the Republic of Vietnam was, to a considerable extent, a violation of the Conven- 
tion. For a discussion of this latter program and the results which it is claimed 
to have attained, see Brewer, Chieu Hoi, passim. One author argues that as the 
Republic of Vietnam was dealing with its own citizens, and not foreign nationals, 
"the Chieu Hoi program may be defended as an act of amnesty or pardon." Bond, 
Proposed Revisions 238. There are merits to this contention, particularly as the 
Republic of Vietnam itself decided that permitting members of the armed forces 
of the People's Republic of Vietnam (North Vietnam) to join the Chieu Hoi pro- 
gram violated Article 7 of the Convention. Vietnam, Article-by -Article Review, 
Article 7. 

326 p or a contrary view, see Hess, Post-Korea 52. However, that author does 
seem to indicate that this is a matter which is subject to individual national polit- 
ical decisions, decisions which can be based upon the arguments discussed above 
(see text in connection with notes 314 and 315 supra) with respect to the inter- 
pretation of the term "fallen into the power of the enemy." Ibid., 58. See also 
U.N., Human Rights, A/7720, para. 88; British Manual para. 126. (The latter 
draws a distinction between defectors, who are stated not "to be entitled to be 
treated as prisoners of war" and prisoners of war who defect during captivity 
who "retain their status and cannot be deprived of it." Ibid., n.l. This position 
would, of course, preclude "Irish Brigades" (see note 323 supra) in future armed 
conflicts. 

327 See the discussion of Article 118 at pp. 417-429 infra. With respect to the 
humanitarian considerations, see Garcia-Mora, Asylum 106-07. 



81 

general and the 1949 Convention in particular, and does not purport 
to concern itself with municipal law questions. Certainly, if the de- 
serter is, by any means, returned to the custody of his national armed 
forces he may be tried for desertion, 328 or for any other appropriate 
violation of municipal law. Under similar circumstances, the defector 
may likewise be tried for desertion, 329 treason, or any other appropri- 
ate violation of municipal law. And, of particular relevance, it appears 
to be generally accepted that the defector who subsequently falls into 
the power of his own national armed forces — the armed forces from 
which he defected — while serving in the armed forces of the enemy, 
is not entitled to prisoner-of war status. 330 

c. COMMANDOS 
It has long been a generally accepted rule of the law of war that 
members of the armed forces of a belligerent, captured in uniform 
while engaged in missions behind the enemy lines, are entitled to 
prisoner-of-war status. 331 During World War II Hitler became incensed 
as a result of the successful operations of the Allied commandos. He 
thereupon issued the so-called Commando Order, 332 under which all 
commandos were "to be exterminated to the last man, either in combat 
or in pursuit" and no quarter was to be given to them. After the war 
a number of German officers were tried and convicted of war crimes 
arising out of their implementation of what was almost universally 
regarded as an obviously illegal order. 333 Post-World War II service 
manuals emphatically reiterated the old rule. 334 And Article 37 of the 
1972 Draft Additional Protocol was even more specific in attempting 
to assure prisoner-of-war status for uniformed members of the armed 
forces captured while behind the enemy lines. 335 



328 Clause, Status 33. 

329 Ibid. 

330 Flory, Prisoners of War 142; Lauterpacht-Oppenheim 268; British Manual 
para. 103; Draper, Recneil 110. 

33i Second paragraph of Article 29, 1899 Hague Regulations and 1907 Hague 
Regulations. 

332 This is the Fiihrerbefehl of 18 October 1942, reproduced at 1 L.R.T.W.C. 
33-34 and at 11 L.R.T.W.C. 20-21. See note 146 supra. 

333 See, e.g., the Dostler Case and the Falkenhorst Case. See also, Kalshoven, 
Reprisals 184-93. The various aspects of the order were directly violative of Arti- 
cles 23(c) and (d) of the 1907 Hague Regulations. 

334 U.S. Manual para. 63; British Manual para. 105; Swiss Manual, paras. 41-42. 

335 1972 Basic Texts 14. The article was somewhat ineptly drafted in that it 
merely referred to the need to comply "with the conditions laid down in Article 4 
of the Third Convention." 1973 Commentary 46. Article 46(2) of the 1977 Protocol 
I provides specifically that a member of the armed forces who gathers information 
in enemy territory does not engage in espionage "if, while so acting, he is in the 
uniform of his armed forces." In Military Prosecutor v. Kassem (42 I.L.R. at 483) 
the opinion indicates that being in possession of civilian clothes at the time of cap- 
ture, even if they were not being worn, might be a basis for a denial of prisoner- 



82 

One matter collateral to the problem of commandos, that of airmen, 
should be mentioned, if for no other reason than because they are 
frequently referred to in tandem with commandos in service manu- 
als. 33<J There appears to be no dispute that parachute troops are active 
combatants during the course of their jump and may be fired upon 
while in the air and subsequently on the ground until they are actu- 
ally captured by the enemy and become prisoners of war. However, 
the treatment of airmen in distress, the members of crews who have 
bailed out of their aircraft after it has been rendered nonairworthy, 
has occasioned some problems. During World War II the Nazis adopted 
an official policy of failing to protect these individuals from the wrath 
of the much-bombed civilian population even after they were in official 
custody and were, therefore, entitled to be protected as prisoners of 
war.* :t And the Egyptians have taken the rather novel position, which 
has no precedent in practice and no legal justification in either cus- 
tomary or conventional international law, that the distressed airman 
is entitled to protection en route to the earth (and to prisoner-of-war 
status thereafter) if he will land in territory controlled by the enemy, 
but not if he will land in territory controlled by forces friendly to 
him. 338 

d. SPIES AND SABOTEURS 

Little discussion of these two categories is required here. As we 
have seen,' m even individuals who fall within the categories specifically 
enumerated in Article 4 are not entitled to prisoner-of-war status if, 
at the time of capture by the enemy, they were dressed in civilian 



of-war status. As the defendants in that case were found not to be entitled to the 
protection of the Convention for other reasons, the statement in the opinion may- 
be regarded as debatable dictum. 

336 See, e.g., U.S. Manual para. 63. 

337 IMT 472. After the war ended a number of members of the German armed 
forces were convicted of the war crime of failing to protect prisoners of war from 
physical attacks by civilians. See, e.g., the Essen Lynching Case and the Trial 
of Bury. 

338 The argument advanced by Egypt was that a pilot was more valuable than 
the plane he flew and that a pilot shot down over friendly territory could be flying 
another plane in combat a few hours later. (Under this thesis the Germans could 
have machine-gunned British fighter pilots parachuting from their destroyed 
planes during the Battle of Britain.) The ICRC apparently supported the position 
of "modern military manuals" which prohibited attacks on air crews in distress 
even when they would land in friendly territory. 1973 Commentary 45. As adopted 
in committee during the 1976 session of the Diplomatic Conference, Article 39(1) 
included the Egyptian proposal ("unless it is apparent that he will land in terri- 
tory controlled by the party to which he belongs or by an ally of that party"). 
However, at the 1977 session of Committee III that phrase was eliminated in its 
entirety from what became Article 42(1) of the 1977 Protocol I. 

™ See pp. 36-37 supra. Sec also Ex parte Quirin 367 U.S. at 31; Draper, Re- 
cueil 109-10. 



83 

clothes and were engaged in an espionage or sabotage mission behind 
enemy lines. It necessarily follows that all other individuals — those 
who do not fall within the enumeration contained in Article 4 of the 
Convention — are likewise denied prisoner-of-war status when they are 
captured while engaged in such a mission. 340 

e. OTHERS 

Historically, a number of other categories of persons were subject 
to capture and to prisoner-of-war status, persons such as the Chief 
of State, whether sovereign or president, members of his family, and 
his chief ministers. 341 This is no longer true. 312 If such individuals fall 
into the power of the enemy when the latter overruns their national 
territory, they will come within the protection of the Fourth (Civil- 
ians) Convention, and they may only be placed in assigned residence or 
interned. If they are taken into custody by the enemy as a result, 
for example, of a commando raid into territory controlled by their 
own national armed forces, or of the capture of a vessel on the high 
seas, they would not come within the ambit of the Third Convention, 
but, once again, they would benefit from the appropriate provisions of 
the Fourth Convention. 

In the past, military attaches or other diplomatic representatives 
of neutral nations have sometimes been permitted by the country to 
which they are accredited, or to which they are sent for the specific 
purpose, to accompany its armed forces in the field as observers. When 
taken into custody by the armed forces of the adverse Party, they are 
not prisoners of war but they may be ordered out of, or removed from, 
the theater of war by the Party into whose hands they have fallen. 343 
This assumes that they have taken no part in the hostilities. 344 If they 
have acted as "military advisers," thus actually rendering military 
assistance to the armed forces opposing those of the belligerent Power 
into whose hands they have fallen, it could be argued that they fall 



:54 ° Article 29, first paragraph, 1907 Hague Regulations ; U.S. Manual para. 76; 
British Manual para. 326; Swiss Manual para. 38. See generally, Article 46 of the 
1977 Protocol I. 

: < 41 Davis, Prisoner of War 531; Risley, The Law of War 129. 

:{4 - It remains true for the Chief of State if he is, by statute or constitution, the 
commander in chief of the armed forces; and for a minister if he is, in addition 
to his political office, a member of the regular armed forces or is accompanying 
the armed forces in the field in one of the categories included in Article 4A. Brit- 
ish Manual para. 127. 

M* British Manual para. 129; U.S. Manual (1940 ed.) para. 77; U.S. Manual 
para. 83. A note in the British Manual states that during the Russo-Japanese War 
(1904-05) a British naval attache and two American military attaches accompany- 
ing the Russian forces were captured by the Japanese at Mukden. They were sent 
to Tokyo and turned over to their respective Ministers. Concerning this episode 
see Ariga, Guerre russo-japouaise 122. 

;544 This is stated as one of the requirements in each of the sections of the man- 
uals cited in the previous note. 



84 

within the ambit of Article 4A(4) 345 and that they are therefore en- 
titled to prisoner-of-war status. 346 

11. Conclusions 

The above discussion involving the determination of entitlement to 
prisoner-of-war status under the 1949 Convention should not be con- 
sidered exhaustive either as to the categories of persons entitled to that 
status, 347 or as to the problems which may conceivably arise in this 
area of the law of armed conflict, 348 particularly as the characteristics 
of armed conflict, and of the combatants participating therein, are in 
an extraordinary period of change. Despite the minimal attention paid 
to the subject of prisoners of war in general and entitlement to pris- 
oner-of-war status in particular in the 1973 Draft Additional Protocol, 
the decisions in this area made by the Diplomatic Conference on the 
Reaffirmation and Development of International Humanitarian Law 
Applicable in Armed Conflicts and included in the 1977 Protocol I dem- 
onstrate that the subject continues to be in a state of flux and is one 
in which major changes may be anticipated, changes which may come 
about by negotiation, but which will more probably evolve out of the 
practice of nations. 

F. SOME GENERAL PROBLEMS 

1. Agreements between Belligerents 

While it is far from easy to obtain agreements between opposing 
belligerents during the course of international armed conflict, par- 
ticularly with respect to matters involving the conduct of that conflict, 



345 The enumeration contained in that article is merely illustrative as is indicat- 
ed by the fact that it starts with the words "such as." 

346 The practice followed by the Vietcong and the North Vietnamese does not 
furnish a particularly strong precedent with respect to the status of "military 
advisers" inasmuch as neither of them gave prisoner-of-war status to any cap- 
tured Americans, whether serving as military advisers to the Republic of Vietnam 
armed forces or, subsequently, as members of combat units. However, inasmuch 
as all such individuals were treated (or maltreated) equally, it may be argued 
that it does furnish a precedent of sorts supporting the premise contained in the 
text. The problem of the status of military advisers, either before or after capture, 
has received suprisingly little attention from commentators. 

347 See note 345 supra. U.S. Manual para. 70 ; British Manual para. 127 n.l. More- 
over, as the two manual provisions point out, there is nothing to preclude a Detain- 
ing Power from granting prisoner-of-war status or treatment to individuals, or cate- 
gories of individuals, who cannot conceivably fall within the provisions of Article 
4. For an example of this, see note 206 supra. One category of individuals specific- 
ally removed from eligibility for prisoner-of-war status by Article 47 of the 1977 
Protocol I is that of "mercenaries." 

348 For example, as one author points out, in the Republic of Vietnam the status 
of "civil defendant" was to be preferred over that of prisoner of war, despite the 
fact that the latter had originally been intended to be the most desirable status for 
an individual in the custody of the enemy, Haight, Shadow War 46. 



85 

it is possible, and numerous agreements between such belligerents have 
been reached in past conflicts. 349 Many articles of the Convention con- 
tain specific references to agreements between the belligerents ; 350 and 
there are matters covered in other articles that could also conceivably 
be the subject of such agreements. 351 In fact, the first paragraph of 
Article 6, which is concerned with special agreements between the 
belligerents, specifies that the belligerents are not restricted to the sub- 
jects enumerated in that Article, 352 that they may conclude agreements 
on any subjects that they deem appropriate. 353 

There are two major limitations contained in the Convention with 
respect to the making of special agreements. First, the lead paragraph 
of Article 6 prohibits any such agreements that "adversely affect the 
situation of prisoners of war" ; and, perhaps of even more importance, 
it prohibits any such agreements that "restrict the rights which it [the 
Convention] confers upon them." Hence, special agreements between 
belligerents may improve the lot of the prisoner of war, but may not 
in any manner remove or limit any of the rights, privileges, or safe- 
guards assured to them by the Convention. 351 And second, the fifth 
paragraph of Article 10 prohibits any special agreement derogating 
from the preceding provisions of that Article (which are concerned 
with the selection of a substitute for a Protecting Power) when the 
freedom of one Power is restricted "by reason of military events, more 



349 See, e.g., the agreements listed in note 39 supra. We are, of course, here con- 
cerned exclusively with agreements concerning prisoners of war reached by the 
Detaining Power and the Power of Origin. 

350 The first paragraph of Article 6 lists 17 articles of the Convention that con- 
tain some type of provision for agreements between belligerents. 

351 For example, agreements concerning prisoner-of-war food, amplifying the 
first paragraph of Article 26 even though it contains no mention of the possibility 
of such agreements, are not inconceivable. See p. 126 infra. Again, it would 
frequently be helpful for the belligerents to enter into an agreement concerning 
comparable ranks, even though the first paragraph of Article 43 is not among 
those referring to the possibility of agreements between belligerents. See p. 168 
infra. 

352 During World War II the United States and Germany reached an agreement 
that called for a head-for-head exchange of prisoners of war who had been sen- 
tenced to death for the murder of fellow prisoners of war (Lewis & Mewha 76- 
77), certainly a subject not referred to in the Convention. 

353 It might be asked why sovereign States, as the belligerents in international 
armed conflict would presumably be, must be granted permission to enter into 
agreements during the course of hostilities. One answer advanced, and with con- 
siderable merit, is that the Convention creates multilateral obligations running 
between all of the Parties thereto, and the first paragraph of Article 6 permits 
bilateral amplifications to which agreement of all of the Parties to the Convention 
would otherwise be required. See Wilhelm, Le caractere 579-81. 

354 In Pictet, Commentary on the First Convention 75, this provision of the first 
paragraph of Article 6 is termed "a landmark in the process of renunciation by 
States of their sovereign rights in favour of the individual and of a superior juri- 
dical order." 



86 

particularly where the whole, or a substantial part, of the territory 
of said Power is occupied." This provision arose out of the experiences 
of World War II when the Scapini Mission replaced the Protecting 
Power in the supervision of the treatment of French prisoners of war 
held by the Germans. 355 It is unfortunate, however, that the decision 
was made to limit this particular prohibition to the provisions of 
Article 10, concerned solely with substitutes for a Protecting Power, 
as the same problem can arise in many other areas. 356 

The second paragraph of Article 6 provides that when the belliger- 
ents reach a special agreement for the benefit of prisoners of war, 
the latter shall have the benefits of the provisions of that agree- 
ment until (1) it expires by its own terms; or (2) it is superseded by 
a subsequent and, presumably, more favorable agreement; or (3) the 
Detaining Power has taken measures more favorable than those con- 
tained in the agreement. 357 This provision parallels the first paragraph 
of Article 5 of the Convention, which provides that the Convention 
itself protects prisoners of war from the time that they fall into the 
power of the enemy until their final release and repatriation. Special 
agreements, once negotiated, have the same duration with the three 
exceptions noted. 

2. Disputes between Belligerents 

Inevitably, disputes arise between the opposing belligerents during 
the course of practically all international armed conflicts, with charges 
and countercharges passing back and forth, some of which will be 
fully justified; 358 some of which will be unwarranted, but will have 
been made in good faith on the basis of apparently reliable information 
received and believed to be true; 359 and some of which will be made 
when known to be completely without foundation, and, perhaps, on the 
basis of evidence known to be manufactured. 360 Not infrequently, such 



355 See notes 52 supra, and IV-70 infra. See also, Pictet, Recueil 87-88; Bastid, 
Droit des gens 335; Wilhelm, Le caractere 576. Substantially the same problem 
arose with respect to the T'Serclaes Mission in occupied Belgium. See note IV-70 
infra. 

356 See, e.g., 1 ICRC Report; and Pictet, Commentary on the First Conven- 
tion 71. 

357 Article 41 requires the Detaining Power to post in every prisoner-of-war 
camp a copy of the Convention and "the contents of any special agreements" in 
the language of the prisoners of war therein incarcerated. See p. 166 infra. 

358 See note VI-115 infra. 

3 59 See note VI-116 infra. 

360 The charge made by the Soviet Union, the People's Republic of China and 
North Korea (not all of whom were admitted belligerents) in 1952 that the 
United States was using bacteriological weapons in Korea (see note 372 infra) 
is typical of this last category. A demand by the United States for an impartial 
investigation was, of course, unanswered. The Soviet Union has, by subsequent 
actions, implicitly admitted the lack of validity of that charge. Levie, Working 
Paper 17. Similarly, the Nazi charge that the British had sunk the Athenia in 



87 

disputes will involve the treatment, or alleged maltreatment, of pris- 
oners of war. The Convention provides two methods of resolving such 
disputes. 

Article 11 provides that, in the interests of the prisoners of war, 
Protecting Powers "shall lend their good offices" with a view to settling 
disputes between belligerents, particularly those involving "the appli- 
cation or interpretation of the provisions of the present Convention." 361 
The second paragraph of Article 11 supplements this by providing 
that, in such a case, the Protecting Power may, at the request of a 
belligerent or on its own initiative, 362 propose to the opposing belliger- 
ents a meeting of their representatives, particularly those responsible 
for prisoners of war, the meeting to take place "possibly on neutral 
territory suitably chosen." 363 It continues with the provision that the 
belligerents to whom a proposal for a meeting of their representatives 
is made "shall be bound to give effect to the proposals made to them 
for this purpose" ; 364 and it concludes with an authorization for the 
Protecting Powers, if they deem it necessary, to propose an individual 
from a neutral nation, or selected by the ICRC, "who shall be invited 
to take part in such a meeting." Presumably, such individual would 
act as a catalyst, a combined conciliator-mediator, whose presence and 
activities would make it possible for the representatives of the oppos- 
ing belligerents to negotiate and to reach agreements, despite the 
handicaps that confront any representatives of opposing belligerents 



September 1939 to create a German atrocity story was made originally on the 
basis of a complete lack of information, and was later adhered to despite official 
German reports establishing that a German submarine had been responsible. Von 
der Porten, The German Navy in World War II 36. 

361 Article 87 of the 1929 Convention referred only to "the application of the 
provisions of the present Convention." The addition of the words "or interpreta- 
tion" was unsuccessfully opposed by the Soviet Union. 2B Final Record 353-54. 

362 The cognate provision of the last paragraph of Article 87 of the 1929 Con- 
vention said that the Protecting Powers "may, for instance, propose to the bellig- 
erents." In Pictet, Commentary 125, the position is taken that, unlike the last 
paragraph of Article 11 of the 1949 Convention, this provision of the 1929 Con- 
vention implied that Protecting Powers could not act on their own initiative, "the 
initiative being taken by the Party to the conflict whose interests they represent." 
No basis can be found for this interpretation of the language of the 1929 Conven- 
tion. However, the last paragraph of Article 11 of the 1949 Convention clearly 
leaves no room for dispute in this regard. 

363 Neither from the identical wording of the last paragraph of Article 87 of 
the 1929 Convention, nor from the travaux preparatoires of the 1949 Diplomatic 
Conference, can any clue be obtained as to the interpretation to be given to the 
words "suitably chosen." Draper, Recueil 145. 

•™ 4 Despite Colonel Draper's contention (ibid.) that by this provision the 1949 
Diplomatic Conference was "establishing a duty where none previously existed," 
the second paragraph of Article 87 of the 1929 Convention actually provided: 
"The belligerents shall be required to give effect to proposals made to them with 
this object." 



88 

attempting to perform these functions during the actual course of 
hostilities. 

During World War I a great many such meetings took place on 
neutral territory, and a great many bilateral and multilateral agree- 
ments were reached by the opposing belligerents. 365 During World 
War II not one such meeting took place, 366 primarily because Switzer- 
land, which was the Protecting Power of the great majority of bellig- 
erents, did not propose any meetings — probably because it evaluated 
the probability of successful negotiations at such a meeting as being 
exceedingly low. 367 Apparently, the participants at the 1949 Diplomatic 
Conference were not optimistic for the future because, while they 
attempted to clarify and strengthen the provisions of Article 11, they 
also adopted a Resolution recommending that "in the case of a dispute 
relating to the interpretation or application of the present Conven- 
tions," the opposing Parties should attempt to reach agreement on 
referring the dispute to the International Court of Justice. 368 Nothing 
is more unlikely than that such an agreement could ever be reached ; 
or, if it were, that the Court would be able to reach a decision before 
the ultimate cessation of hostilities ! 

The second method of resolving disputes between belligerents is 
the "enquiry" provided for in Article 132. Its value is difficult to 
estimate because there was no comparable provision in the 1929 
Convention. 369 However, it appears to present built-in problems. The 
first paragraph of Article 132 provides that at the request of a bellig- 
erent an inquiry concerning any alleged violation of the Convention 
"shall be instituted." This has been construed by some as being "obli- 
gatory"; 370 while others assert that the institution of an inquiry is 
consensual. 371 Inasmuch as this paragraph of Article 132 also provides 
that the inquiry is to be instituted "in a manner to be decided between 
the interested Parties," it is difficult to see how an inquiry can be 
instituted, or conducted, in the absence of agreement between the 
Parties. 372 Moreover, this conclusion is borne out by the next para- 



365 See, e.g., the agreements listed in note 39 supra. 

366 Janner, Puissance protectrice 51; Pictet, Commentary 125. The agreements 
referred to in note VII-67 infra, were reached by diplomatic correspondence, not 
by face-to-face negotiation. (It could not be ascertained how the agreement re- 
ferred to in note 352 supra was reached.) 

307 Janner, Puissance protectrice 51. 

368 Resolution I, 1 Final Record 361. 

369 Article 30 of the 1929 Sick-and-Wounded Convention may be considered to 
be the progenitor of this article of the 1949 Prisoner-of-War Convention. It ap- 
parently was never used. Draper, Recueil 149; Pictet, Commentary 632. 

vo ibid. 

371 1971 GE Documentation, II, at 36. 

372 During the hostilities in Korea the Communists charged that the United 
States was using bacteriological weapons. 2 ICRC Confl.it de Coree, Nos. 396-99, 
at 84-86. The United States proposed that an investigation of this charge be made 



89 

graph of Article 132, which attempts to establish a procedure to be 
followed should the opposing belligerents be unable to agree on the 
manner in which the inquiry is to be conducted. Under those circum- 
stances the belligerents "should agree on the choice of an umpire 
who will decide upon the procedure to be followed." Once again, agree- 
ment between the belligerents is required ; this time, agreement on a 
third party who is to set the procedure for the inquiry upon which 
the belligerents were themselves unable to agree. It seems rather 
unlikely that it will be any easier for the belligerents to reach agree- 
ment on the selection of an umpire with the far-reaching power to 
establish the inquiry procedure than it will be for them to reach agree- 
ment on the procedure themselves; and if they do not, the inquiry 
does not take place. 373 However, if a procedure for the inquiry is 
established, either by the belligerents pursuant to the first paragraph 
of Article 132, or by the umpire selected pursuant to the second para- 
graph of Article 132, the inquiry is conducted in accordance with that 
procedure ; and if the inqury establishes a violation of the Convention, 
the third and last paragraph of Article 132 requires the belligerent 
found to be in violation of the Convention to repress the violation as 
quickly as possible. 374 Of course, if the inquiry determines that there 
has been no violation, no problem arises. 

As has been indicated, the value of the provisions of Article 132 
concerning inquiries is dubious. Realizing this, a proposal has been 
made for the creation of a "United Nations Commission of Inquiry 
into Breaches of the Humanitarian Conventions. " 375 The functions of 
this Commission would encompass "investigating all complaints of 
violations during armed conflicts" of the 1899 and 1907 Hague Con- 
ventions, the 1925 Geneva Protocol, and the 1949 Geneva Conventions. 
For the reasons already set forth, the allocation of quasi-judicial 
functions of this nature to any body owing its existence to a political 
organization such as the United Nations is a procedure to be regarded 
with considerable apprehension. 376 There have, perhaps, been some 



by the ICRC. Ibid., No. 406, at 89. The ICRC offered to conduct such an investiga- 
tion, "subject to the agreement of both Parties." Ibid., Nos. 407-11, at 89-93. The 
Chinese and the North Koreans did not answer the ICRC and the idea of an in- 
vestigation was abandoned. Ibid., No. 437, at 109. 

37 '< Lauterpacht-Oppenheim 395; Pictet, Commentary 632. For an example of 
the difficulty of securing an agreement between the adversaries for an inquiry (in 
the Middle East) , see ICRC Annual Report, 1974, at 18-19. 

• 574 See Draper, Recueil 149-50. The last paragraph of Article 132 provides that 
"the Parties to the conflict shall put an end" to any violation established by the 
inquiry. (Emphasis added.) Presumably, one belligerent requested the inquiry 
because it believed that its adversary was violating the Convention. When this 
belief is established as a fact, it would appear that the belligerent so found to be 
in violation of the Convention would be the only one with the burden of repression. 

; *"5 u.N., Human Rights, A/8370, para. 164. 

376 See pp. 18-19 supra. 



90 

United Nations fact-finding commissions that have determined facts 
on the basis of facts and not on the basis of politics ; if so, such com- 
missions are few and far between.' 177 And even though the proposal 
referred to above would have the commission composed of "persons, 
independent of any government, and chosen because of their high 
moral character and their capacity to conduct inquiries in accordance 
with generally recognized judicial principles," qualifications closely 
resembling those previously suggested hereir, 37S the overriding dif- 
ference is that the present proposal would have the members of the 
commission selected by the political processes of the United Nations, 
a method not conducive to the selection of persons who will actually 
meet the stated qualifications. 

At its final (1977) session the Diplomatic Conference considering 
the ICRC's 1973 Draft Additional Protocol to the 1949 Conventions 
adopted and included in the 1977 Protocol I a completely new Article 
90 entitled "International Fact-Finding Commission." This Article, 
which is probably the longest and most detailed in the Protocol, creates 
a Commission of 15 members "of high moral standing and acknowl- 
edged impartiality," to be elected by the Parties every five years, with 
the Commission itself filling casual vacancies. The members are to 
serve in their personal capacity. The Commission may inquire into 
alleged grave breaches or other serious violations of the 1949 Con- 
ventions or the 1977 Protocol ; may facilitate the restoration of an 
attitude of respect for the Conventions and the Protocol ; and, in 
other situations, may institute an inquiry at the request of one Party 
and with the consent of the other Party or Parties concerned. The 
Commission is to function by Chambers consisting of five members 
plus one ad hoc member to be appointed by each side. (No nationals 
of the Parties may be included in the Chamber.) The Chamber may 
hear evidence submitted by the Parties ; may itself seek evidence ; and 
may carry out an investigation in loco. Its report is not to be made 
public unless the Parties so request. Unfortunately, the entire Article 
is subject to a provision (similar to the optional clause of the Statute 
of the International Court of Justice) requiring the filing of a declara- 
tion recognizing the competence of the Commission to act in relation 
to any other Party accepting the same obligation. It is not unlikely 
that many of the very Parties who have heretofore demonstrated 
their unwillingness to comply with the law of war, even that included 
in international agreements to which they voluntarily became Parties. 



377 See the constructive criticism of the methods of fact-finding employed by 
one United Nations investigatory body in the humanitarian field in Carey, UN 
Protection of Political and Civil Rights 84-126. Other subsequent United Nations 
investigations continue to be subject to the same criticisms. 

378 See pp. 19-22 supra. 



91 

will decline to file a declaration accepting the jurisdiction of the 
Commission. 

The settlement of disputes between opposing belligerents in inter- 
national armed conflict is an inherently difficult process that will only 
be successfully accomplished when both sides consider such a result 
to be in their own self-interests; but however difficult it may be, and 
however weak the provisions of the Convention dealing with the 
subject may be, the mere fact of their existence may, on occasion, 
serve as the basis for negotiations leading to the settlement of a 
dispute. Certainly, this possibility more than justified their inclusion 
in the Convention. 379 

3. Prohibition against Renunciation of Rights 

As we have seen, the penultimate paragraph of Article 10 pro- 
hibits certain agreements between belligerents when, because of 
military events, they are not able to negotiate on a basis of equality. 
Obviously, prisoners of war can never negotiate on a basis of equality 
with the Detaining Power. This truism was repeatedly demonstrated 
during World War II and it resulted in the adoption of Article 7 of 
the Convention, a provision that had no counterpart in any previous 
Convention dealing with the subject of prisoners of war. 380 In absolute 
terms, it prohibits them from renouncing any or all of the rights 
secured to them by the Convention or by any special agreement 
reached by the belligerents for their benefit. 381 

The belief that any new convention should provide that the rights 
secured to prisoners of war by that convention must remain inviolate 
and inviolable for the entire duration of the hostilities was evidenced 



379 Article 121 also provides for an "enquiry/' but of a different kind. The first 
paragraph of Article 121 mandates that the Detaining Power will itself promptly 
institute an official inquiry into every death or serious injury of a prisoner of war 
caused by another person, whether guard, prisoner of war, or stranger, as well as 
into every death the cause of which is unknown; the second paragraph of Article 
121 requires the Detaining Power to notify the Protecting Power of the fact that 
the inquiry is being conducted and, upon its completion, to provide the Protecting 
Power with a copy of the report, together with copies of the statements of all wit- 
nesses; and the last paragraph of Article 121 requires the Detaining Power to 
prosecute any individual whose guilt is indicated by the inquiry. See p. 289 
infra, and, particularly, note IV-128 infra. During World War II the Germans 
followed a procedure identical to that prescribed by the first two paragraphs of 
Article 121, at least with regard to British prisoners of war. German Regulations, 
No. 15, para. 114. 

380 Pictet, Commentary 87. See Flory, Prisoners of War 142-44. 

381 In The Ministries Case (667-68) the Tribunal found that the provisions of 
Article 6 of the 1907 Hague Regulations prohibiting the use of prisoners of war 
on work connected with the operations of war did not apply when the prisoner of 
war volunteered. The first paragraphs of Articles 50 and 52 of the 1949 Convention 
still permit limited volunteering in the work area. See pp. 231-233 infra. See also, 
Pictet, Commentary 90. 



92 

as early as the 1946 Preliminary Conference. 382 While this idea was, 
for some unknown reason, not specifically implemented by the 1947 
Conference of Government Experts, it did appear as Article 6 of the 
ICRC draft submitted to the 1948 Stockholm Conference. That draft 
provided that " [p]risoners of war may in no circumstances be induced 
by constraint, or by any other means of coercion to abandon" any of 
the rights contained in the draft convention. 383 The Stockholm Con- 
ference deleted the words "be induced by constraint, or by any other 
means of coercion to abandon" and substituted the one word "re- 
nounce." 384 This was a wise decision, as the original draft did not 
prohibit voluntary abandonment of rights conferred by the rest of 
the draft convention and thus left it open for the Detaining Power to 
assert, in every case, that the prisoner of war's decision was voluntary 
and that no constraint or coercion had been used to assist him in 
reaching his decision abandoning the protections of the convention. 385 
Subsequently, the ICRC raised the issue that throughout the conven- 
tion being drafted obligations were imposed upon the Parties (really, 
upon the Detaining Power) while proposed Article 6 imposed an obli- 
gation directly on the prisoner of war himself; and it offered modi- 
fications that would have imposed the obligation in regard to renun- 
ciation on the Detaining Power rather than on the prisoner of war. 386 
At the 1949 Diplomatic Conference several other amendments were 
also offered, 387 but none gained the necessary support and the draft 
article approved at Stockholm was ultimately accepted without 
change. 388 This provision, now Article 7, constitutes an absolute ban 
on even a voluntary renunciation by a prisoner of war of any of the 
rights conferred upon him by the other provisions of the Convention 
or by any special agreement entered into by his Power of Origin and 
the Detaining Power for his benefit. 389 

Article 7 is, unfortunately, an oversimplification of a complex 
matter and numerous problems concerning its application have already 
arisen, while others are apparent. Does it apply to the defector, the 
ideologist who, while a member of the armed forces of his own 
country, seeks out the enemy with the object of joining its armed 
forces to fight against his country? While disputed by some, it is 
difficult to understand how Article 7 can be meaningful if a Detaining 



382 1946 Preliminary Conference 70. 
38.3 Draft Revised Conventions 55. 

384 Revised Draft Conventions 54. 

38 5 2B Final Record 18. 

386 Remarks and Proposals 39; 2B Final Record 17; Wilhelm, Le caractere 561. 
38 ? 2B Final Record 17-18; Pictet, Commentary 89. 

388 2B Final Record 28. 

389 As aptly put by one writer: "Thus, prisoners of war are no longer protected 
only against the enemy; they are also protected against themselves." Pictet, Re- 
cueil 85 (trans, mine). However, see note 381 supra. 



93 

Power may permit a member of the enemy armed forces in its power, 
no matter how he so came to be, to volunteer for service in the armed 
forces of the Detaining Power. 390 Nothing would then prevent a 
Detaining Power from contending that every member of the enemy 
armed forces who came into its power was a defector who had never 
had but one thought — to leave the armed forces of his Power of Origin 
and to join the armed forces of the Detaining Power. 391 

The question of the extent of the coverage of Article 7 was directly 
raised during the armistice negotiations in Korea in connection with 
the problem of repatriation under Article 118. Is it a violation of 
Article 7 to permit a prisoner of war to reject repatriation and to 
seek asylum either in the territory of the Detaining Power, or else- 
where, when hostilities cease ? The decision ultimately reached in that 
controversy, one that had the support of a large majority of the 
United Nations General Assembly as then composed, was that Article 
7 was not violated if it could be established in a satisfactory manner 
that the prisoner of war was actually making an informed, voluntary, 
and personal choice. 392 It probably can be assumed that the decision 
made with respect to this matter in Korea has established a precedent 
with respect to the application of Article 7 to the repatriation of 
prisoners of war after the cessation of hostilities. 393 

4. Dissemination of and Instruction on the Convention 

A convention on the treatment of prisoners of war is of little value 
if it is not known to and understood by two major groups: (1) those 
who are potential prisoners of war or who have actually become pris- 
oners of war; and (2) those who are responsible for handling, guard- 
ing, and, in general, supervising the activities of prisoners of war on 
behalf of the Detaining Power. 394 Instruction in the provisions of the 
Convention thus serves a dual purpose: (1) it ensures that members 
of armed forces who fall into the power of the enemy will be aware, 
at least generally, of their rights as prisoners of war; and (2) it 



390 See pp. 78-80 supra. 

39i The North Korean "reeducation" program and the South Vietnamese "Chieu 
Hoi" program almost went this far. See note 325 supra. 

392 See pp. 421-426 infra. One acknowledged expert in this field, who was an 
active delegate at the 1949 Diplomatic Conference, takes the position that to hold 
otherwise would be "a travesty of the purpose of that Article." Gutteridge, Re 
patriation 214. 

393 p or a wide-ranging discussion of the prohibitions against changing the 
status of a prisoner of war, either in accordance with his desires, in accordance 
with an agreement between his Power of Origin and the Detaining Power, or by 
unilateral act of the Detaining Power, see Wilhelm, Status, passim. It does not 
discuss Article 7 of the Convention in the context of the Korean repatriation prob- 
lem, probably because publication began in July 1953, while that problem was 
still sub judice. 

394 Concerning this latter category, see p. 165 infra. 



94 

ensures that the personnel of the Detaining Power who capture pris- 
oners of war or who have the direct responsibility for the prisoners 
of war in its custody are aware of the rights and protections to which 
prisoners of war are entitled and the obligations in this regard that 
rest upon the Detaining Power's personnel. 395 

Article 84 of the 1929 Convention merely required that that Con- 
vention, in the native language of the prisoners of war, be posted in 
the prisoner-of-war camps so that it could be consulted by them. 396 
The 1947 Conference of Government Experts considered this to be 
inadequate and suggested that the enlargement of that Article include 
a provision requiring the Parties to bring the stipulations of the Con- 
vention to the knowledge of the members of their armed forces. 397 In 
preparing the draft convention to be submitted to the 1948 Stockholm 
Conference, the ICRC thought it advisable to separate these two 
ideas. 398 With some amendments and editing, the new provision calling 
for dissemination of and instruction on the Convention became the 
first paragraph of Article 127 of the 1949 Convention. That Article 
contains three undertakings by the Parties: (1) the widespread dis- 
semination of the Convention in their territories; (2) the inclusion of 
the study of the Convention in programs of instruction of members 
of their armed forces; and (3), if possible, the inclusion of study of 
the Convention in programs of instruction of their civilian popu- 
lation. 399 

Provisions such as those contained in Article 127 are, of course, 
absolutely indispensable inasmuch as a convention the contents of 
which are completely unknown, or are known only to a limited group 
in the Ministry of Foreign Affairs and, perhaps, in the Ministry of 
Defense, is obviously of no value whatsoever. 40 " Moreover, with 
nations, as with individuals, there is frequently a great distance 
between the promise and the performance ; and here, as in many other 
areas of the Convention, a good rule has been laid down but no pro- 
vision has been made for ensuring that it is being applied, particularly 



395 During World War II the chairman of the Mixed Medical Commission func- 
tioning in the United States (concerning these Commissions, see pp. 411-412 
infra) found that there was "a considerable lack of knowledge concerning the pro- 
visions of the Geneva Convention on repatriation and of [sic] sick and wounded 
prisoners of war." Rich, Brief History 502. 

396 This is now found in the first paragraph of Article 41. See pp. 165-166 infra. 

397 1947 GE Report 261. 

398 Draft Revised Conventions, Articles 34 (at 76) and 117 (at 133). 

399 The text of the Convention is to be disseminated in time of peace as well as 
in time of war. (The provisions of the first paragraph of Article 127 were adopted 
in almost identical form in Article 25 of the 1954 Hague Convention for the Pro- 
tection of Cultural Property in the Event of Armed Conflict.) 

400 "In order to 'implement' the Geneva Conventions, not only their existence 
but also their contents must be fully known, especially by those responsible for 
application." 1965 Implementation 1. 



95 

in peacetime. In 1966, on its own initiative, the ICRC sent a memo- 
randum on the subject to the 114 States then Parties to the 1949 
Conventions and to their National Red Cross Societies, requesting 
information concerning the implementation of the first paragraph of 
Article 127. The responses received could not, for the most part, be 
considered as indicating a very widespread and heartfelt compliance 
with its provisions. 401 

The 1973 Draft Additional Protocol included a provision intended 
to remedy this situation. Article 72(3) provided that each Party 
"shall report" to the Depositary of the Conventions (Switzerland) 
and to the ICRC "at intervals of four years on the measures they 
have taken" to comply with the obligations of dissemination and in- 
struction assumed under the first paragraph of Article 127 of the 
Convention and under Article 72(1) of the Protocol. 402 Such a pro- 
vision might well go far beyond its surface appearance in procuring 
a more universal compliance with the dissemination and instruction 
provisions. 403 

One aspect of the provision with respect to civilian instruction is 
worthy of note. Under the draft article submitted to and approved 
by the 1948 Stockholm Conference, the Parties would have under- 
taken "to incorporate the study [of the Convention] in their pro- 
gramme of military and civil instruction." 404 Because of the constitu- 
tional limitations of some Federal systems of government, under 
which civilian education is frequently not a Federal function, 405 



401 Twenty-five truly responsive answers were received. 1969 Implementation, 
II, at 9. A similar ICRC memorandum sent in 1972 inspired 30 responsive answers 
out of the 133 States then Parties to the 1949 Conventions. 1973 Implementation 5. 
A few additional answers were received later and were reprinted in two addenda. 

402 Committee I of the 1975 Diplomatic Conference approved Article 72(3) of 
the Protocol without change by a vote of 22-17-19. See 1975 Report of Committee 
I, at 29-30. At the 1977 session of the Diplomatic Conference the paragraph was 
eliminated in its entirety from what became Article 83 of the 1977 Protocol I. 

408 See note 402 supra. 

404 Revised Draft Conventions 99. Programs of instruction on the 1949 Con- 
ventions, and any Protocol thereto, for members of the armed forces present prac- 
tical problems only, not legal ones. See the Guidelines developed by the Seminar 
on the Teaching of Humanitarian Law to the Armed Forces, 13 I.R.R.C. 42 
(1973). See also the U.S. Department of Defense Directive No. 5100.77, 5 Novem- 
ber 1974, DOD Program for the Implementation of the Law of War. 

405 Draper, Recueil 152. In Pictet, Commentary on the First Convention 349, the 
author asserts that "the propriety of [these constitutional scruples] is open to 
question," and in Pictet, Commentary 615, the statement is made that "[s]ome 
delegations, therefore, having a scrupulous regard for constitutional niceties 
which may be thought unfounded. . . ." (Emphasis added.) Without attempting to 
detract from the expertise of the author of those statements in the area of American 
constitutional law, it is fairly obvious that he is totally unfamiliar with the Amer- 
ican doctrine of "states' rights" (and of the parallel Canadian doctrine with re- 



96 

Canada and the United States proposed, and the 1949 Diplomatic 
Conference accepted, an amendment changing the above-quoted word- 
ing to read, in pertinent part, "program of military and, if possible, 
civil instruction." 406 (Emphasis added.) 

Finally, the 1973 Draft Additional Protocol introduced a completely 
new concept into the law of international armed conflict when it in- 
cluded, in its Article 71, a provision obligating the Parties to ensure 
that their armed forces have "qualified legal advisers," not only to 
act as legal advisers to military commanders, but also to "ensure that 
appropriate instruction be given to the armed forces." 407 While a 
number of armed forces have long included legally trained persons on 
their rolls, there are many who do not, or, if they do, presently have 
so few that they could not possibly perform the functions assigned 
to them by this provision. 



spect to the rights of provinces). If the Article of the Convention had remained 
as originally drafted, the United States Senate would, in all probability, have in- 
sisted that the ratification of the Convention by the United States include a res- 
ervation to it. (For the ICRC's persistence in this respect, see note 406 infra.) 

406 2B Final Record 70, 112. Nevertheless, under Article 72(1) of the 1973 
Draft Additional Protocol the Parties would have undertaken to include the study 
of the Convention "in their programmes of military and civil instruction." At 
the 1975 session of the Diplomatic Conference Committee I, perhaps more real- 
istically inclined than the ICRC in this particular area, adopted by consensus an 
amended version pursuant to which the Parties undertake to include the study of 
the Convention in their programs of military instruction "and to encourage the 
study thereof by the civilian population." 1975 Report of Committee I, at 29-30. 
As so worded, the provision was adopted as Article 83(1) of the 1977 Protocol I. 

407 Committee I of the 1975 Diplomatic Conference adopted this article by con- 
sensus after making several amendments that improved it without changing the 
objective sought to be attained, 1975 Report of Committee I, at 29; See Fleck, 
The Employment of Legal Advisers and Teachers of Law in the Armed Forces, 
13 I.R.R.C. 173. With only minor changes this provision became Article 82 of 
the 1977 Protocol I. 



CHAPTER II 
THE REGIME OF THE PRISONER OF WAR 

A. INTRODUCTORY 

In general, each of the successive conventions containing provisions 
for the protection of prisoners of war, beginning with the unratified 
1874 Declaration of Brussels and concluding, at the moment, with 
the Third 1949 Geneva Convention, has been somewhat more sophis- 
ticated in its coverage of the day-to-day life of prisoners of war, the 
protections afforded to them, and the obligations imposed upon them. 
The purpose of this chapter will be to analyze generally those pro- 
tections and obligations that now devolve upon prisoners of war "from 
the time they fall into the power of the enemy and until their final re- 
lease and repatriation." 1 To the maximum extent possible, this analysis 
will be presented on a completely functional basis, avoiding for the 
most part the usual article-by-article discussion, thus bringing together 
and correlating all of the numerous provisions throughout the Con- 
vention which deal with any particular facet of the regime of the 
prisoner of war.- We shall join the enemy soldiers at the moment of 
their capture, accompany them on their evacuation to the rear, 
view their life in the prisoner-of-war camp, and witness their ultimate 
release and repatriation."' We should then have a fairly good under- 
standing of the treatment of these unfortunate individuals which was 
probably contemplated by the great majority of the draftsmen of the 
1949 Convention as well as, in some areas, the very different kind of 
treatment which they probably will actually receive, at least from 
some Detaining Powers. We will thus be alerted to the strengths and 
the weaknesses of this great humanitarian international agreement 
to which most of the members of the world community of nations 
have subscribed. 4 

It is important to bear in mind that there are certain fundamental 
protections which are accorded to prisoners of war by the 1949 Con- 
vention during the entire period of captivity. Therefore, these pro- 
tections are applicable whether the individual is still in the hands of 



1 Article 5. 

- See Preface, p. v. 

:{ As a few of the subjects will require extremely extensive discussions, they will 
merely be mentioned here and a whole chapter will thereafter be devoted to each 
of them. 

4 See Appendix B. 

97 



98 

the capturing unit, is in the process of evacuation to the rear, is in 
an interrogation center, is in a rear-area permanent prisoner-of-war 
camp, is being transferred from one such camp to another, is in a 
labor detachment, or is in process of repatriation. These protections 
have, for the most part, been grouped together in the early part of 
the 1949 Convention. They include what are now such basic proposi- 
tions as that prisoners of war are in the hands of the Detaining 
(enemy) Power, and not of the individuals who captured them, and 
that the Detaining Power is responsible for the treatment which they 
receive [first paragraph of Article 12] ; that they must at all times 
be humanely treated and must be protected, particularly against acts 
of violence, intimidation, insults, and public curiosity [Article 13] ; 
that they are entitled to respect for their persons and their honor 
[first paragraph of Article 14] ; r> and that, subject to specific provi- 
sions relating to rank, sex, health, age, and professional qualifications, 
they must all be treated alike, and without adverse distinctions based 
on race, nationality, religious belief, or political opinions [Article 16] . 
The cited Articles also contain provisions which are specific, rather 
than general, in their application. Many of the provisions of these 
Articles, both general and specific, will be discussed at length at the 
point where such a discussion is deemed to be most appropriate. 

B. FROM BATTLEFIELD TO PRISONER-OF-WAR CAMP 

1. Evacuation from the Battlefield 

A surprise attack overruns an enemy position. An enemy unit is 
surrounded and forced to surrender. An enemy patrol is ambushed 
and its members are captured. A patrol succeeds in its mission and 
returns to its own lines with captured enemy personnel. These and 
many other incidents of war will result in the abrupt transformation 
from armed combatants to disarmed captives of officers, noncommis- 
sioned officers, and enlisted, men, some of whom may be severely 
wounded, some of whom are less severely wounded, and some of whom 
are unhurt except for the mental shock which inevitably accompanies 
capture. The first paragraph of Article 5 specifies that the Convention 



5 The advent in World War II of large numbers of women as combatant (or non- 
combatant) members of the armed forces, and the reasonable likelihood that this 
situation will also exist in future major international armed conflicts, necessitated 
the inclusion in the 1949 Convention of a number of provisions specifically dealing 
with this problem. Provisions of this nature are to be found in the second para- 
graph of Article 14, the last paragraph of Article 25, the second paragraph 
of Article 29, etc. A discussion of the overall problem and of the relevant provi- 
sions of the Convention will be found at pp. 178-180 infra. It will not be mentioned 
in the discussion of the various substantive problems which are applicable to all 
prisoners of war, regardless of sex. Because of the nominal and pronominal in- 
adequacies of the English language, the words "men," "he," "his," and "him" 
should, where appropriate, be construed as including "women," "she," "her," etc. 



99 

applies to them "from the time they fall into the power of the enemy." 
This means that simultaneously with the transition from armed com- 
batants to disarmed captives, there is a transition from armed com- 
batants to prisoners of war and that, without any formal action or 
decision, the individuals whose status has thus abruptly changed are 
immediately entitled to the full protection and safeguards of the Con- 
vention. Thus, the 1949 Convention, like its predecessors, provides 
[in the first paragraph of Article 19] that these individuals must be 
removed from the dangers of the combat zone as soon as possible. 
There is, in addition, a prohibition against the holding of captured per- 
sonnel in combat areas as a shield against enemy action. 6 

Certainly, no front-line combat unit would willingly permit itself 
to remain encumbered with prisoners of war, so that there is every 
incentive on the part of the capturing troops to secure their evacua- 
tion with the greatest possible dispatch, at least to the next higher 
command which has responsibilities for prisoners of war. But the 
evacuation of prisoners of war requires manpower for guards, and 
perhaps for transportation — manpower which the combat unit most 
probably will not be able to spare, at least until the battlefield area 
has settled down to a comparatively quiet state. It can scarcely be 
said that such a necessary delay in evacuating the newly captured 
prisoners of war would be violative of the 1949 Convention. As a mat- 
ter of fact, the third paragraph of Article 19 apparently contemplates 
such a possibility, for it provides that "[p]risoners of war shall not 
be unnecessarily exposed to danger while awaiting evacuation from a 
fighting zone." In other words, during the period which elapses before 
it is physically possible for the capturing unit to effectuate the evac- 
uation of the prisoners of war, every effort must be made to place 
them at a location where they will be protected from the fighting so 
far as such protection is possible. Evacuation to the rear must take 
place as soon as it is within the capabilities of the capturing unit. 
The requirement regarding prompt evacuation of new prisoners of 
war is that they be evacuated "far enough from the combat zone for 
them to be out of danger." 7 

But even then not all of the new prisoners of war will necessarily 
be among those to be evacuated. The second paragraph of Article 19 
authorizes the capturing unit to keep prisoners of war in the combat 
zone where, due to wounds or sickness, prompt evacuation would be 



6 The first paragraph of Article 23 prohibits the capturing unit from detaining 
prisoners of war where they may be exposed to the fire of the combat zone, or in 
the combat zone or elsewhere in order "to render certain points or areas immune 
from military operations." 

7 Article 19, first paragraph. As a practical matter, in modern armed conflict 
there will be very few places where prisoners of war are completely out of danger. 
The Convention provision refers to the dangers of the battlefield itself. 



100 

more dangerous for their survival than retention in the combat zone. 8 
Many modern armies have medical units which function very close to 
the front lines, performing emergency operations on badly wounded 
personnel where delay in rendering such assistance would probably 
be fatal. 9 In many armies wounded enemy personnel will receive the 
same type of emergency treatment as that side's own personnel and 
will only be evacuated thereafter. 10 Unfortunately, this humanitarian 
procedure is far from being universally followed. 

Selected prisoners of war will undoubtedly be sent to higher echelon 
interrogation centers. Normally, such centers will be sufficiently far 
removed from the combat zone to constitute compliance with the pro- 
visions of the Convention with which we are here concerned. Prisoners 
of war may not be held in the combat zone by front-line units solely 
for purposes of interrogation. This is a prohibition which, however, 
is not always obeyed. We shall shortly see that this is not the only 
problem arising out of the tactical need for the prompt interrogation 
of newly captured prisoners of war. 11 

Assuming that the front-line unit is now in a position to evacuate 
to the rear the prisoners of war whom it has captured, the Convention 
contains provisions with regard to the manner in which such evacua- 
tion is to be performed, provisions with which, unfortunately, the 
front-line unit is not always in a position to comply, and through no 
fault of its own. 



8 Article 14 of the First Convention (and Article 16 of the Second Convention) 
provides that enemy personnel captured while wounded or sick are prisoners of 
war and are entitled to the protections and safeguards of the Third Convention. 
See pp. 70-71 supra. 

9 In Korea, and even more so in Vietnam as more refined techniques evolved, the 
helicopter was used as a quick method of evacuating the seriously wounded directly 
from the battle field to medical installations. U.S. Army Regs. 633-50, para. 38, pro- 
vides that the evacuation of wounded prisoners of war from the combat zone is to 
be through the same medical channels as those provided for wounded members of 
the United States armed forces. (Agreement was reached comparatively early at 
the Diplomatic Conference on the provisions of what is now the 1977 Protocol I 
with respect to medical air evacuation, a subject covered by Articles 24-31 thereof, 
and Articles 5-13 of Annex I thereof.) 

10 Early in 1942 it was already apparent that the then Japanese Government did 
not intend to comply with the humanitarian provisions of the law of war, including 
the 1929 Prisoner-of-War Convention, despite its specific promise so to do. How- 
ever, on at least one occasion, when units of the Japanese Army overran an Ameri- 
can field hospital on Bataan and found wounded Japanese soldiers receiving the 
same treatment as wounded Filipinos and Americans, they posted guards to protect 
the hospital, its personnel, and its patients. Falk, Bataan 92-94. Such action is, of 
course, required by the provisions of the first paragraph of Article 19 of the First 
Convention. For a quite different attitude toward an American field hospital on 
Bataan. see ibid., 94-101. 

11 For a specific instance of violations of the Convention in connection with in- 
terrogations before and during evacuation, see Levie, Maltreatment in Vietnam 
340-41. 



101 

It will be recalled that Article 13 of the Convention requires that 
prisoners of war must "at all times be humanely treated." This pro- 
vision, of course, applies to the period of evacuation as well as gen- 
erally. However, lest there by any doubt about this, the provision is 
specifically repeated with regard to evacuation in the first paragraph 
of Article 20 which states, in part, that " [t]he evacuation of prisoners 
of war shall always be effected humanely. . . ." But this latter Article 
goes even further because, due to the unique problems frequently en- 
countered during the course of the original evacuation of prisoners of 
war from the front lines to the rear, it was felt necessary, and prop- 
erly so, to establish certain specific minimum standards for general 
guidance. 

In the first place, Article 20 requires that the evacuation be effected 
under conditions similar to those employed in changes of station for 
forces of the Detaining Power. This provision is obviously unrealistic. 
Front-line troops do not have available to them the physical facilities 
which are available for the movement of troops on change of station. 
The most that can be expected is that logistical vehicles which bring 
supplies forward may be available to move prisoners of war to the 
rear. If, as may frequently occur, the battlefield conditions are such 
that motor vehicle turnabout areas are located at a considerable dis- 
tance to the rear, then prisoners of war are necessarily going to be 
required to march on foot at least to those areas ; and upon their ar- 
rival there, they are going to be required to continue their march to 
the rear on foot if no vehicles are available at that point. Moreover, 
many armies are not adequately mechanized for the movement of 
supplies to forward areas. 12 Certainly, in line with what has already 
been discussed, it is to the advantage of the new prisoner of war to 
get away from the combat zone, and as far to the rear as possible, and 
as soon as possible, even if he must travel on foot — except, perhaps, 
insofar as the possibility of escape diminishes as he moves to the rear. 

In the second place, the middle paragraph of Article 20 requires 
the Detaining Power to furnish an adequate amount of food, potable 
water, clothing, and medical attention during the course of the evac- 
uation. There is no question but that humanitarian considerations of 
the highest order dictate that the prisoner of war should be adequately 
cared for in these material respects during the process of evacua- 



12 Only a comparatively few of the armies of today are what might be considered 
to be "adequately" mechanized. In Korea a million "volunteers" of the so-called 
Chinese People's Volunteers were supported logistically by a number of vehicles 
which the commander of a Western European army would probably consider in- 
sufficient for a single infantry division. 



102 

tion. 13 This can be a crucial period insofar as the ultimate survival 
of a prisoner of war is concerned. While most prisoners of war will 
survive an evacuation which is accomplished in a few hours or, per- 
haps, a day, evacuations which are performed completely by marches 
and which last a number of days or weeks take a disproportionately 
high toll — and usually unnecessarily so. 14 

In the third place, like its predecessors, the second paragraph of 
Article 20 requires the captors to "establish as soon as possible a 
list of the prisoners of war who are evacuated." The dual purpose of 
this provision — like a number of other provisions relating to identi- 
fications, notifications, and communications with the exterior (the 
homeland of the prisoner of war) — is (1) to establish the account- 
ability of the Detaining Power for the prisoners of war whom it has 
taken; and (2) to permit families to receive definite information 
concerning the fate of their loved ones. Perhaps in order to avoid ac- 
countability, perhaps in the expectation that uncertainty with regard 
to the fate of husbands, sons, and fathers will adversely affect the 
morale and the will to continue the war of the enemy civilian popula- 
tion, some countries have either intentionally disregarded this pro- 
vision or, having perhaps complied with it for their own use, have 
refused or neglected to comply with the later provisions of the Con- 
vention 15 which make the present provision meaningful by providing 



13 In the preliminary discussions of this Article by Committee II (Prisoners of 
War) of the 1949 Geneva Diplomatic Conference, the representative of the ICRC 
(Wilhelm) referred to "the distressing experiences of the last war" which had 
occurred during the evacuation of prisoners of war. 2A Final Record 252. He was 
undoubtedly referring primarily to such well-publicized incidents as the "Death 
March" which followed the fall of Bataan. LM.T.F.E. 1043-45; ibid., Pal Dissent 
1171-72. Less wellpublicized atrocities of this nature were the subject of charges 
in a number of other war-crimes cases such as the Trial of Masao; Trial of Heer- 
ing and Trial of Mackensen. According to one commentator, 35-40 percent of the 
Germans captured at Stalingrad died while being evacuated. Reiners, Soviet Indoc- 
trination 18. 

14 Experiences during the hostilities in Korea indicate that the treatment of 
prisoners of war by the North Koreans and the Chinese Communists during the 
period of evacuation (as well as during the rest of the period of captivity) reached 
a new level in inhumanity. With regard to the prisoner-of-war evacuations by the 
Communists, one American investigating body had this to say: "The first ordeal 
the prisoner [of war] had to suffer — and often the worst — was the march to one 
of these camps. ... So the journeys to the prison camps were 'death marches'. . . . 
On one of these marches, 700 men were headed north. Before the camp was reached. 
500 men had perished." U.S., POW 8. See also U.S., Communist Interrogation 16- 
17. The Viet Minh followed the identical procedure with the French prisoners of 
war captured at Dien Bien Phu — and with equally fatal results. Fall, Indochina 
7-9. 

13 Articles 122, 123, and 124. For a fuller discussion of this problem, see pp. 153- 
158 infra. 



103 

for the furnishing of the information contained in such lists of evac- 
uees through neutral channels to the Power upon which the prisoners 
of war depend. 16 While it is true that front-line troops are rarely- 
equipped to do administrative work, even a rifleman or truck driver 
or military policeman could perform the simple function of listing the 
prisoners of war whose evacuation he is supervising. 17 Moreover, this 
act of listing the prisoners of war being evacuated is actually of value 
and an advantage to the Capturing Power, as it is then in a much 
better position to account for prisoners of war who die or escape dur- 
ing the evacuation and thus to avoid charges of enslavement which 
have — and not without justification — been leveled against the coun- 
tries which have failed to account for individuals who presumably 
were once prisoners of war in their hands. 

Where the evacuation process takes place over a period of time, and 
intermediate stops are necessary, the last paragraph of Article 20 
contemplates that such stops will be made at "transit camps" and di- 
rects that prisoners of war be held in such camps for as brief a period 
as possible. Experience has shown that these transit camps were fre- 
quently nothing but rude barbed-wire enclosures offering none of the 
required amenities such as protection from the elements, sanitary 



16 These were among the many provisions of the 1949 Convention which the 
North Korean and Chinese Communists refused to implement during the Korean 
hostilities, despite an early promise by the North Koreans to comply with the Con- 
vention. In August and September 1950 the North Koreans furnished two token 
lists containing the names of 110 Americans taken prisoners of war early in the 
fighting. 1 ICRC, Conflit de Coree, Nos. 176 & 178. However, they thereafter re- 
fused all requests for further information of this kind, and the Chinese Commu- 
nists never furnished any lists. During the armistice negotiations the United Na- 
tions Command demanded a list of all prisoners of war held by the Communists 
before it would embark on any discussion of the prisoner-of-war problem. It then 
developed that the Communists were completely unable to account for many thous- 
ands of members of the armed forces of the nations composing the United Nations 
Command and of the Republic of Korea, who were missing in action and many of 
whom had presumably been captured. It is probable that a majority of these miss- 
ing individuals — for whom the Communists were never able to account — were 
among those who died on the evacuations marches, no lists of such evacuees having 
ever been made. 

17 It must be admitted that even a crude list may be well-nigh impossible of prep- 
aration at this level if the capturing troops and the prisoners of war use different 
alphabets, or if one uses an alphabet and the other uses ideographs. However, even 
this difficulty can be easily overcome by the use of the duplicate identity cards pro- 
vided for in the third paragraph of Article 17. Thus, one of the members of the 
United States Delegation to the 1949 Geneva Diplomatic Conference has said: 
"This provision [for duplicate identity cards] offers an easy solution to the prob- 
lem of hasty evacuation. The duplicates of each identity card may be collected prior 
to evacuation and they constitute a basis for a nominal roll. The provision that the 
identity card "may in no case be taken away from him" does not preclude the tak- 
ing of the duplicate. The intent of the provision is that the prisoner of war shall at 
no time be without means of identification." Dillon, Genesis 50. 



104 

facilities, etc. Article 24 provides that where transit camps are used 
on a regular basis they must meet all of the conditions required of 
permanent prisoner-of-war camps and evacuees must receive the same 
treatment there as the 1949 Convention entitles them to in such per- 
manent prisoner-of-war camps. 18 Unfortunately, there is little likeli- 
hood of general compliance with these provisions. Actually, in many 
areas of the world intermediate stops made during the course of evac- 
uation will usually be made at what are merely convenient stopping 
points in that particular march, where no facilities whatsoever are 
available, and compared to which even a rough transit camp would 
offer considerable comfort. 19 

Finally, it must be pointed out that in at least one respect this par- 
ticular facet of the 1949 Convention inexplicably contains less protec- 
tion for the prisoner of war than did the 1929 Convention. The last 
paragraph of Article 7 of the latter Convention limited daily foot 
marches during the evacuation to 20 kilometers (about 12 miles) a day 
except in certain specified situations. No comparable provision is to 
be found in the 1949 Convention. 20 If this deletion was made because 
it was thought that future evacuations would be accomplished entirely 
by mechanical means, events have already disclosed the incorrectness 
of such an assumption. 21 While the distance fixed in the 1929 Conven- 
tion as a maximum might have been considered as somewhat low 
(perhaps it was intentionally set low because of the number of walk- 
ing wounded who will normally be among those evacuated on foot), 
there is little doubt but that some reasonable maximum should have 
been included, if for no other reason than to furnish the commander 
of the capturing troops with an international standard as a guideline 
for his own protection against subsequent charges of maltreatment 
of prisoners of war. 

2. Transfer of Prisoners of War between Detaining Powers 

One problem which may arise as early as the evacuation is that 



18 The 1929 Convention had no provision establishing minimum requirements for 
transit camps. Those maintained by both sides in Europe during World War II 
were found to be grossly inadequate. 1 ICRC Report 245. The ICRC takes the posi- 
tion that a distinction must be made between the type of transit camp referred to 
in the last paragraph of Article 20, used for evacuations, and the more permanent 
type of transit camp referred to in Article 24, used for intercamp transfers. Pictet, 
Commentary 175-76. 

19 Of course, if the transit camp is located in the hinterland, remote from the 
combat zone, and is used primarily in connection with transfers between permanent 
prisoner-of-war camps, the applicability of Article 24 can scarcely be questioned. 

20 Its deletion was recommended by the 1947 Conference of Government Experts 
(1947 GE Report 128) on the theory that this type of protection would be covered 
by the broad principles that were to be included in the proposed new first para- 
graph of the article. The propriety of the action was not challenged at the 1949 
Diplomatic Conference. 

21 The numerous deaths which occurred during prisoner-of-war evacuations by 



105 

relating to the transfer of prisoners of war from the custody of one 
Detaining Power (the Capturing Power) to another Detaining Power, 
an ally. Suppose, for example, that a small Belgian tactical unit, such 
as a battalion, is operating under attachment to a French division 
which is furnishing it complete logistical support. The Belgians cap- 
ture a number of prisoners of war. They have no facilities for the 
evacuation of, nor prisoner-of-war camps to which to evacuate, these 
prisoners of war. In accordance with their overall logistical reliance 
on the French, the Belgians turn the prisoners of war over to the 
French for evacuation and custody. Which Power is thereafter respon- 
sible for ensuring that these particular prisoners of war receive the 
full protection accorded them by the 1949 Convention, the Belgians or 
the French ? 22 The solution to this problem was sharply disputed at 
the 1949 Geneva Diplomatic Conference. 23 The Stockholm Draft which 
had resulted from the prior efforts of the ICRC provided for the joint 
responsibility of the Capturing Power and the actual Detaining Pow- 
er. 24 The United Kingdom and the Netherlands had each submitted a 
memorandum prior to the convening of the Conference opposing joint 
responsibility and recommending that responsibility be placed solely 
on the actual Detaining Power, 25 basically because of the difficulty of 
enforcing joint responsibility, but also because of the likelihood of its 
causing friction between allies. The provision which was finally adopt- 
ed, and which appears in the second and third paragraphs of Article 
12, was a United Kingdom compromise proposal placing primary re- 
sponsibility for the proper care and treatment of the transferred 
prisoners of war on the Power which accepts them, and which thereby 
becomes their Detaining Power (France, in our example), but pro- 



the Communists in Korea (see note 14 supra) were indubitably directly related to 
the daily marches of 50 and 60 kilometers which the prisoners of war were re- 
quired to make, frequently in subzero weather and always with inadequate cloth- 
ing, food, and water, and with no medical attention for the wounded and sick. 

22 The situation could, in fact, be far more complex than outlined above. See 
Baxter, Constitutional Forms 325. And, of course, the Power to whom custody is 
transferred must be a Party to the Convention. 

23 2A Final Record 248-50 ; Dillon, Genesis 48 ; Pilloud, Reservations, R.I.C.R. 
Supp. 195-96. 

24 See Article 11, Revised Draft Conventions 56. The United States and the Soviet 
Union both supported this proposal. 2A Final Record 328. Although the 1929 Con- 
vention contained no provision concerning the transfer of prisoners of war from 
one Detaining Power to another, during World War II the United States had ac- 
cepted the view that it continued to be ultimately responsible for the welfare of the 
prisoners of war captured by it whom it had turned over to the custody of its allies. 
Feilchenfeld, Prisoners of War 87; 1 ICRC Report 242, 336 & 544-45; Lewis & 
Mewha 240. 

25 Diplomatic Conference Documents: Memorandum by the Government of the 
United Kingdom, Document No. 6, at 5-6; Proposition by the Netherlands Govern- 
ment, Document No. 8, at 6. 



106 

viding that if the Protecting Power advises the Capturing Power (Bel- 
gium) that the transferred prisoners of war are not being treated as 
required by the 1949 Convention in some material respect, the burden 
is then on the Capturing Power either to see that the deficiency is cor- 
rected or to request the return of the transferred prisoners of war. 26 
There is thus created the normal absolute responsibility of the actual 
Detaining Power and a type of contingent responsibility on the Cap- 
turing Power. 27 All of the Communist countries have followed the 
lead of the Soviet Union and have filed reservations to this provision 
of the 1949 Convention. 28 The Soviet reservation, which is typical, 
states that it does not "consider as valid the freeing of a Detaining 
Power, which has transferred prisoners of war to another Power, from 
responsibility for the application of the Convention to such prisoners 
of war while the latter are in the custody of the Power accepting 
them." 29 

3. Interrogation of Prisoners of War 

From the moment of capture there also arises the problem of the 
extent to which the Detaining Power may seek or extract information 
from the new prisoner of war. 30 In Article 17 the 1949 Convention 
has attempted, to a rather limited extent, to remedy the deplorable 
situation in this regard which existed during World War II. However, 
this Article merely elaborates somewhat on its predecessor, Article 5 
of the 1929 Convention ; and like so many of the other provisions of 
the new Convention, the ultimate efficacy of the redrafted provisions 
will depend almost entirely upon the extent to which the belligerents 
direct and require compliance with these provisions of the 1949 Con- 
vention by their troops despite the not abnormal military expediency 
to the contrary. 



26 This was, generally speaking, the manner in which the United States had acted 
during World War II (1 ICRC Report, 544-45) and it apparently voted in favor of 
the United Kingdom compromise proposal which was adopted. The Soviet Union 
did not. 2A Final Record 330-31. 

27 Yingling & Ginnane 407. The second paragraph of Article 12 requires that 
before making the transfer the Capturing Power must have ''satisfied itself of the 
willingness and ability" of the proposed Detaining Power to apply the Convention. 

28 Shindler & Toman 483ff . For a discussion of the Soviet position, see Brock- 
haus, TheU.S.S.R. 291. 

29 Shindler & Toman 505. One ICRC legal expert has stated with respect to the 
reservations to Article 12 that "this reservation cannot be considered as binding 
on States which have not made it. As it is not intended to limit or modify the 
obligations of the States which did make it, it constitutes in reality a unilateral 
declaration by those States, indicating the attitude which they will adopt if the 
situation arises. They are not entitled, however, to rely on the Convention itself to 
require that other States adopt the same attitude." Pilloud, Reservations, 11 
R.I.C.R. Supp. 195-96. 

30 See generally Glod & Smith, Interrogation. 



107 

Prohibitions on the use of force to compel prisoners of war to 
divulge information to the enemy are not a recent development. They 
were already well established in 1863 when Lieber included in his Code 
a provision which stated that "the modern law of war permits no 
longer the use of any violence against prisoners in order to extort 
the desired information or to punish them for having given false in- 
formation." 31 Oddly enough, Article 9 of the Regulations annexed to 
the Second Hague Convention of 1899 and to the Fourth Hague Con- 
vention of 1907, which were identical, each merely required the pris- 
oner of war to give his "true name and rank" and provided for loss 
of privileges if he refused to do so — thus imposing obligations in this 
area on the prisoner of war, but none whatsoever on the Detaining 
Power. This defect of the Hague Conventions was soon recognized, 
and the special prisoner-of-war agreements negotiated by the bellig- 
erents during the course of World War I frequently remedied the omis- 
sion with rather detailed restrictive provisions. 32 The 1929 Convention 
rectified the omissions of 1899 and 1907 but, unfortunately, its pro- 
visions were all too frequently disregarded ; and, as has already been 
stated, the 1949 Convention does little more than to elaborate on some 
of the relevant provisions. 

In order to ensure the correct identification of every prisoner of war 
the first paragraph of Article 17 of the 1949 Convention requires each 
of them to answer questions regarding his full name, rank, serial num- 
ber, and date of birth. 33 Moreover, if the prisoner of war refuses to 
furnish these items of information to his interrogators, he may have 
restrictions placed on the privileges to which his rank or status 34 might 
otherwise entitle him, 35 unless his failure to respond is due to his 



31 Lieber Code, Article 80. Article 130 of the 1949 Convention makes "torture or 
inhuman treatment" a "grave breach" of the Convention. For a discussion of this 
grave breach and its relationship to the interrogation of prisoners of war, see 
pp. 357-358 infra. 

32 See, e.g., Article XXIX of the 1918 Agreement between the British and Germ- 
an Governments concerning Combatant Prisoners of War and Civilians. 

33 For a problem created by the disparity between the requirements of the first 
paragraph of Article 17 and those of the fourth paragraph of Article 122, see 
note 216 infra. 

34 The word "status" in the second paragraph of Article 17 refers to the cate- 
gories of persons covered by Article 4A(4), such as war correspondents, who, 
while not actually members of the armed forces, are normally granted the status 
of officers if they are captured. Pictet, Commentary 159. 

35 For a list of these privileges, see ibid., 159-60. The statement is also there 
made (at 159) that "[u]nder the Convention, a prisoner who wilfully makes an 
inaccurate statement or who refuses to give the particulars specified in the first 
paragraph [of Article 17] may be liable to 'a restriction of the privileges accorded 
to his rank of status". It is assumed that the "inaccurate statement" refers to one 
concerning identification. There is certainly nothing in Article 17, or anywhere 
else in the 1949 Convention, that makes it improper for a prisoner of war to give 
incorrect information on any subject other than identification. 



108 

physical or mental condition.' 56 This, however, is the outer limit of the 
pressure which may be applied upon a prisoner of war incident to his 
interrogation. 37 

It must be borne in mind that nowhere does the 1949 Convention 
prohibit the interrogation of prisoners of war which goes beyond the 
items listed above. 38 Moreover, there is no prohibition against obtain- 
ing information from a prisoner of war by trickery. 39 What the fourth 
paragraph of Article 17 of the 1949 Convention does prohibit is the 
use of physical or mental torture, or any other form of coercion, to 
compel a prisoner of war to answer questions propounded to him ; and 
it further provides that a prisoner of war who refuses to answer such 
questions may not be "threatened, insulted, or exposed to unpleasant 
or disadvantageous treatment of any kind" because of his refusal. 40 



3<J The penultimate paragraph of Article 17 specifies that if a prisoner of war 
is unable to provide the identifying material because of his physical or mental 
condition, he is to be handed over to the medical service and other means are to 
be used to establish his identity. Presumably this would include recourse to the 
identification card, identification tags, interrogation of other prisoners of war 
captured at the same time and place, etc. And the last paragraph of Article 17 
requires that interrogations be conducted in a language understood by the pris- 
oner of war being interrogated. 

37 In Korea a situation arose which had not been foreseen by the draftsmen 
of the Convention — prisoners of war who did not desire to be identified and who 
would give false names, switch identities, etc. Meyers & Bradbury, Political Be- 
havior 221 ; U.S., MP Board, Korea, I, at 101. 

38 U.S. DA Pam 27-161-2, at 99. The laws or military regulations of the Power 
of Origin may provide sanctions against members of its armed forces who, as 
prisoners of war, respond to such interrogation ; sanctions which, of course, will 
only be imposable subsequent to repatriation. Khadduri, War and Peace 129; Sees. 
IV and V, Code of Conduct; Sec. 29, U.S.S.R. Law of 25 December 1958. (While 
the Soviet law does not specifically refer to giving information to the enemy, a 
Soviet commentator on this section is quoted as stating that it requires the Soviet 
soldier who is taken prisoner of war to "sacredly protect military and state 
secrets." Ramundo, Soviet Criminal Legislation 81.) After the repatriation of pris- 
oners of war from North Korea (1953), several American servicemen were court- 
martialed for informing against fellow prisoners of war. See, e.g., United States 
v. Batchelor; United States v. Floyd; United States v. Dickenson. 

30 In the notes on the Trial of Killingcr, 3 LRTWC at 68, the following appears: 
"During his closing address one of the Defense Counsel made three submissions 
regarding the scope of the [1929] Convention. The first was that under the Gen- 
eva Convention interrogation was not unlawful. The second was that to obtain in- 
formation by a trick was not unlawful, under the same Convention. The third 
point was that to interrogate a wounded prisoner was not in itself unlawful unless 
it could be proved that that interrogation amounted to what could be described as 
physical or mental ill-treatment. The Court expressed its agreement with these 
three principles." And in Pictet, Commentary 163-64, this statement is made: "Be 
this as it may, a State which has captured prisoners of war will always try to 
obtain military information from them. Such attempts are not forbidden; . . ." See 
also Flory, Prisoners of War 94; Spaight, Air Power 386; U.S. POW 58-61. 

40 After World War II there were a number of war crimes trials arising out of 
illegal interrogations of prisoners of war. See, e.g., Trial of Killinger. 



109 

The front-line unit which captures a prisoner of war will frequently, 
and understandably, attempt to exploit that event by seeking to obtain 
information from him concerning tactical positions and plans and or- 
der of battle before evacuating him to the rear. Psychologically, this 
is probably the most fruitful time to interrogate a prisoner of war 
because of the state of shock from which he will be suffering, and his 
fear of the unknown, including how he will be treated by the enemy 
in whose complete power he now so suddenly finds himself. 41 The cap- 
turing unit may seek such information without in any way violating 
the provisions of the 1949 Convention, provided that it does not use 
any form of coercion and provided that it evacuates the prisoner of 
war from the combat zone as soon as practicable. 42 

Certain prisoners of war (airmen, submariners, missilemen, nuclear 
specialists, etc.) may be considered as having important and unique 
intelligence value, and they will probably be evacuated through special 
evacuation channels and to special interrogation centers. It is this spe- 
cial type of prisoner of war, in particular, who was the victim of mal- 
treatment of the most vicious nature during World War II, both in 
Germany and in Japan. 43 



41 It has been found that a prisoner of war is most amenable to answering 
questions when he is still suffering from the shock of capture. Toppe, German Meth- 
ods 23. As long ago as 1936 the Soviet Army prepared a lengthy questionaire which 
was to be completed by the capturing troops so that it would be available during 
subsequent interrogations. Olson, Soviet Policy 110. 

4 - In U.N. Human Rights, A/8052, para. 118, the statement is made that "one 
of the important rights of prisoners of war was that they should not be inter- 
rogated until they have been medically attended and were in a fit condition for 
interrogation." Without in any way condoning interrogation by withholding medi- 
cal treatment from those who are in immediate need of it, or by brutal methods, 
no such "right" exists. See note 39 supra. Paragraph 119 of the United Nations 
report is even more unrealistic. It states, in part: "Other basic right of prisoners 
of war under interrogation would include the right, when possible, to some inde- 
pendent advice before interrogation ; . . . He should have the right not to be in- 
terrogated incessantly or for unduly long periods of time, and should have the 
right to food and rest during periods of questioning." The interrogation of a pris- 
oner of war in a search for tactical information of immediate urgency cannot be 
equated to the interrogation of an individual arrested for questioning in connec- 
tion with the possible commission of a crime, as the United Nations report at- 
tempts to do. 

43 It will be a long time before any interrogators are able to match the cruelties 
inflicted upon captured American naval personnel at the Ofuna Naval Interroga- 
tion Center in Japan during World War II. See the Sehacht Statement. The Nazis 
maintained a special interrogation center for all captured airmen (except Rus- 
sians) at Auswerstelle West, Oberursel, Germany, but wile, rather than torture, 
was normally employed there. American Prisoners of War 3; U.S., POW 58-61; 
Glod & Smith, Interrogation 148. An opinion of the Judge Advocate General of 
the United States Army states that "truth serum" may not be used in interrogat- 
ing prisoners of war. JAGW 1961/1157, 21 June 1961. 



110 

4. Property in the Possession of the Prisoner of War 

Our discussion has so far dealt exclusively with the safety and well- 
being of the new prisoner of war — and this is certainly an area which 
the 1949 Convention emphasizes, and rightly so. By the fact of his 
capture the prisoner of war has lost his liberty for the duration of 
hostilities ; but the Powers which drafted the Convention, and those 
which have since become Parties to it, have, presumably, by their 
ratification or adherence thereto, indicated that they entertain the hu- 
mane belief that there is no reason why he should also be deprived 
of his health or his life. Indeed, they have gone a step further, taking 
the position that his loss should be limited to the temporary depriva- 
tion of his liberty and that even his property (and, as we shall see, 
his civil rights) should be protected. Here, too, the protection accord- 
ed to the prisoner of war begins at the moment of capture and con- 
tinues throughout the period of captivity. 

While it is only natural to expect that the prisoner of war will be 
thoroughly searched immediately upon his capture, both to ensure 
that he has no hidden weapons or other articles which might facilitate 
escape, and to ascertain whether he has in his possession any docu- 
ments or other items of intelligence value, the Convention preserves 
to him his own personal property as well as certain types of equip- 
ment of military issue. 

Once again we find that the provisions dealing with this subject in 
the 1949 Convention are basically mere elaborations of the cognate 
provisions of the 1929 Convention. It will therefore be useful to ascer- 
tain what defects, if any, were found to exist in this area during World 
War II and to see how these defects have been remedied, if at all. 

Article 6 of the 1929 Convention protected the prisoner of war in 
the continued possession of "effects and objects of personal use," hel- 
mets and gas masks, identification documents, insignia of rank, dec- 
orations and objects of value. 44 Because it is impossible to foresee 



44 The United States practice with respect to such matters during World War 
II is summarized as follows: "Each prisoner was searched and disarmed imme- 
diately upon capture and contraband articles were taken from him, including all 
equipment issued to him by his government, except clothing. He was permitted 
to retain his helmet and gas mask in combat zones. Contraband included cameras, 
binoculars, signalling devices, compasses, and such other articles as might be 
useful to him in an escape. All military papers, documents, maps, and diaries were 
retained for intelligence examination." Rich, Brief History 492. This statement was 
concerned with the implementation of POW Circular No. 1, para. 35 of which 
established four categories for personal property found in the possession of a 
prisoner of war at the time of his capture : 

35. . . . Property found in the possession of a prisoner [of war] may be in one 
of four classes: 

a. Personal effects which he may be allowed to retain. 

b. Personal effects taken from him temporarily but returned as soon as prac- 
ticable. 



Ill 

what weapons will be used in a future war, the Greek Government 
suggested that the provision for the retention of the helmet and gas 
mask be enlarged to include other protective devices. 45 This was ac- 
complished by adding the words "and like articles issued for personal 
protection" to the former provision when it was redrafted into the 
first paragraph of Article 18 of the 1949 Convention. This added clause 
will cover such items as bulletproof vests, antiradiation garments, 
radiation badges, etc. 46 

It has already been noted that the 1929 Convention provided for the 
retention by the prisoner of war of any identification documents which 
he possessed. The third paragraph of Article 17 of the 1949 Conven- 
tion now provides for the issuance by the Power of Origin of identity 
cards 47 in duplicate 48 containing all of the information as to identifi- 
cation that a prisoner of war is required to furnish his captors, and, 
if desired, the individual's signature and fingerprints 49 and any other 
information the particular belligerent may wish to include thereon; 
and also contains a specific prohibition against taking identity cards 
away from prisoners of war, a practice which had caused numerous 
problems during World War II. 50 The second paragraph of Article 18 
contains the further provision that where a prisoner of war has no 



c. Personal effects which he is not permitted to retain while interned, in- 
cluding money and any article which may be used to facilitate escape. 

d. Articles which he is not permitted to retain at any time and which will be 
confiscated. 

For another type of classification, see Pictet, Commentary, 166 n.2. 

45 Diplomatic Conference Documents : Memorandum by the Greek Government, 
Document No. 11, at 8. The language actually adopted was suggested by a Cana- 
dian representative. 2A Final Record 251. 

46 During World War II none of the belligerents construed the provision con- 
cerning the retention of helmets and gas masks as applying once the prisoner of 
war had reached a permanent prisoner-of-war camp. See note 44 supra, and 
SPJGW 1944/6900, 5 July 1944. Whether this will continue to be a reasonable 
interpretation of the new provisions is doubtful, given the developments of modern 
warfare. 

47 However, entitlement to the status of prisoner of war does not depend upon 
the possession of an identity card. Nordic Experts 167-68. See also p. 62 supra. 

48 The provision of the 1949 Convention which calls for the individual to be 
supplied with two identity cards, rather than one, was proposed by a member of 
the United States Delegation to the 1949 Geneva Diplomatic Conference (Parker). 
2A Final Record 251. He gave no reason for his proposal, which was adopted 
without discussion. Ibid., 351. For a possible reason, see note 17 supra. 

49 For a discussion of fingerprinting, see pp. 118-119 infra. 

50 During World War II the ICRC found that some 26,000 German noncom- 
missioned officers (NCOs) had had their identity papers taken from them in 
England, before being shipped to prisoner-of-war camps in the United States, with 
the result that they were denied NCO status and were required to work. 1 ICRC 
Report 339. German Regulations, No. 13, para. 54, specifically directed the confisca- 
tion of all identification papers "[i]n order to render escapes of prisoners of war 
more difficult." The United States Army considered this and other similar direc- 



112 

identity card, the Detaining Power shall supply him with such a doc- 
ument. 51 Thus three separate efforts have been made to prevent a re- 
currence of the situation which so frequently arose during World War 
II when prisoners of war were unable to establish their actual grade 
because their identification documents had been taken from them. 52 

During World War II a rather unusual situation arose with respect 
to the right of a prisoner of war to retain his uniform. There was no 
specific reference in the 1929 Convention to the right of a prisoner 
of war to retain his uniform or other items of clothing. However, this 
was apparently a generally accepted proposition. Nevertheless, Ger- 
man guards at prisoner-of-war camps were taking from prisoners of 
war certain uniforms which, with minimum changes, could be made 
to resemble items of clothing used by the civilian population and thus 
could facilitate escape, substituting other uniforms of the same bellig- 
erent which were less easy to convert. In July 1943 the German mili- 
tary command issued a directive prohibiting this practice. 53 Despite 
this directive, the practice seemingly continued because six months later 
it was called to the attention of the American military authorities, who 
expressed the opinion that the German guards were not acting im- 
properly inasmuch as even personal and other specifically exempted 
property may be taken from a prisoner of war and impounded when 



tives to be contrary to the provisions of the 1929 Convention and to be without 
support in international law. SPJGW 1945/2868, 17 March 1945. Today such ac- 
tion would be a direct violation of the third paragraph of Article 17 of the 1949 
Convention; and the second paragraph of Article 18 of the Convention would re- 
quire the Detaining Power to replace the identity card which had been improperly 
taken. 

51 The United States Army has implemented this requirement with U.S. Army 
Regs. 633-50, para. 19, which directs that if a prisoner of war does not have an 
identity card, one will be issued to him. 

52 The United States Army apparently continues to take the position that pris- 
oners of war who do not possess identification documents should be treated as 
privates (other ranks), although provision is now made for them to submit re- 
quests to their own governments for proof of their true grades. U.S. Army Regs. 
633-50, para. 30. 

53 German Regulations, No. 27, para. 410, read as follows: 

The uniforms of prisoner of war officers, particularly French light infan- 
try officers, French and British naval officers, and British aviation officers, 
have been frequently confiscated for reasons of security and replaced by 
others less objectionable as to cut and color. Such procedure is not permis- 
sible. The prisoner of war officer has a right to his uniform. It must be left 
in his possession even if it should make a stricter surveillance of the prisoner 
of war necessary. 



113 

it is of a character to facilitate escape. 54 The specific authorization for 
prisoners of war to retain "articles used for their clothing and feed- 
ing" even if they are of military issue, now included in the first para- 
graph of Article 18 does not appear to have changed the situation ; and 
it is probable that this unwritten limitation on the protection of pris- 
oner of war property rights continues to exist. 55 Thus, a prisoner of 
war might have an antique pocket watch with a compass in the stem. 
Even though such a watch falls within the category of "articles of 
personal use" [Article 18, first paragraph] or of "articles having 
above all a personal or sentimental value" [Article 18, third para- 
graph], which prisoners of war may normally retain, no Detaining 
Power could be censured for taking the watch and placing it in safe- 
keeping until the owner is repatriated. 5R 

Money in the possession of the prisoner of war at the time of his 
capture is placed in a category by itself. Article 6 of the 1929 Conven- 
tion merely provided that money could only be taken from a prisoner 
of war by order of an officer, that a receipt had to be given, and that 
the amount taken had to be credited to the individual's prisoner-of-war 
account. These provisions were found to be inadequate to provide 
answers to the numerous problems which arose during World War II 
with regard to money so taken and it is doubtful that they have been 
resolved by the provisions of the 1949 Convention, despite the fact that 
the draftsmen were undoubtedly aware of these problems and did 
elaborate to some extent on the former provisions. 

If the prisoner of war has in his possession at the time of capture 
a reasonable amount of the currency of the nation in whose armed 
forces he was serving at the time of his capture (the Power of Ori- 
gin), no real problem arises. But what if he has an extraordinarily 
large amount of such currency? Or if he has currency of the Detain- 
ing Power? Or of third Powers, belligerent or otherwise? Or so-called 
invasion or occupation money, currency issued by his military authori- 
ties solely for use in a particular area? Each of these questions arose 



"» 4 In SPJGW 1944/2037, 11 February 1944, the view was expressed that "the 
German position [of confiscating leather flying suits and work coveralls on the 
ground that they would facilitate escape] is correct. There is an established prin- 
ciple in international law allowing the detention of articles useful in aiding es- 
pionage, or escape, even though they fall within the class of property that a 
prisoner of war may ordinarily retain. It is believed that that principle is prop- 
erly applied in this case to the clothes in question which might well be taken for 
civilian clothes." 

55 U.S. Army Regs. 633-50, No. 24 (a) , permits the retention of their mess equip- 
ment by prisoners of war in accordance with the provisions of Article 18, but, never- 
theless, specifically excludes knives and forks, items which could be used as weapons 
or tools. 

56 Ibid., para. 24(b). This could in any event probably be justified under the 
fifth paragraph of Article 18, which permits the withdrawal of articles of value 
from prisoners of war "for reasons of security." 



114 

during World War II. None of them is really answered directly by 
the 1949 Convention. 

As in the 1929 Convention, the fourth paragraph of Article 18 of 
the 1949 Convention provides that money may be taken from a pris- 
oner of war only by order of an officer, 57 that a receipt must be given, 
and that the amount taken must be credited to the prisoner-of-war 
account which Article 64 of the 1949 Convention requires to be estab- 
lished for each individual prisoner of war. It has two additional fea- 
tures intended as protective devices: a requirement that the receipt 
be itemized and that it be "legibly inscribed with the name, rank, and 
unit of the person issuing the receipt" ; and a provision for a "special 
register" in which the transaction is to be recorded at the time it takes 
place, with particulars as to the amount of money taken and the iden- 
tity of the prisoner of war from whom it was taken. Unfortunately, 
no convention provisions of this kind can possibly be effective with 
the numerous rapacious individuals to be found in every armed force 
in time of war and who may happen to be the captors ; and it is ex- 
tremely doubtful if any newly captured prisoner of war, even one fully 
familiar with these provisions of the 1949 Convention, is going to be 
sufficiently assertive and courageous to question the act of his captor 
in taking his money and either not giving him a receipt, or giving 
him one which is completely indecipherable. 

But let us suppose that the captor and searcher is one of the more 
honest individuals who probably constitute the great mass of the 
members of most armed forces. He finds that the prisoner of war has 
only a nominal amount of money on his person and that all of such 
money was issued by the Power of Origin. The appropriate receipt 
would be issued, the appropriate entry would be made in the special 
register, and subsequently, if so requested by the prisoner of war, the 
amount would be credited to his prisoner-of-war account; if no such 
request is made, the currency will be kept with other objects taken 
from the prisoner of war for safekeeping and will be returned to him 
at the time of his repatriation. No problems are encountered and the 
provisions of the 1949 Convention are fully adequate to cover the 
transaction. 

Now let us suppose that this same captor finds that the prisoner of 
war has in his possession a sum of money in the currency of the Power 
of Origin many times in excess of that which he could normally be 
expected to have. There is much to be said for the position adopted 
by some Powers during World War II of requiring the prisoner of 



57 In Pictet, ConDucntary 169, the suggestion is made that the officer need not 
actually be present, that he may instruct a clerk to carry out the operation, but 
that the officer remains responsible. As a practical matter, this is probably how 
the search for, and the removal of, money will be accomplished in the great major- 
ity of cases. 



115 

war to justify his possession of an inordinately large sum of money. 58 
Article 18 is concerned with protecting the personal property of the 
prisoner of war and the portion of paragraph 4 thereof which is con- 
cerned with the giving of the receipt for money taken from a prisoner 
of war refers to the "owner." Under these circumstances, it is be- 
lieved that the Detaining Power is warranted in requiring the prisoner 
of war to justify his possession of unusually large sums of money. 59 

A somewhat similar problem arises when the newly captured pris- 
oner of war is found to be in possession of currency issued by the 
Detaining Power or its allies. There is rarely, if ever, any valid justi- 
fication for a member of the armed forces of one belligerent having in 
his possession currency of an enemy belligerent. When he does, it 
usually indicates one of three things: that he has taken it illegally 
from members of the armed forces of the Detaining Power captured 
and searched by him before his own capture ; 60 that he has looted the 



58 SPJGW 1944/11874, 3 November 1944, stated: 

4. A prisoner of war is not entitled, under the quoted provisions of Article 
6 of the [1929] Convention, to have all money found upon his person credited 
to his account. It is only money belonging to the prisoner of war that is to be 
so credited, and where a reasonable doubt arises as to ownership, the prisoner 
of war may be called upon for proof thereof. . . . 

5. The possession by a prisoner of war of a large sum of cash likewise in- 
dicates the probability that such money is not his property. The practice of 
diffusing public funds among individuals when capture or military occupa- 
tion impends is almost as old as war itself. . . . 

To the same effect, see Downey, Captured Enemy Property 491-92. Substantially 
the same result was reached in German Regulations, No. 27, para. 395. The United 
Kingdom and the United States have both taken this same position in their post- 
World War II military manuals. See British Manual para. 141 nn.l & 2; and U.S. 
Manual para. 94c. [The frequent similarities which may have been noted in these 
two manuals is no mere coincidence. See Baxter, The Cambridge Conference on 
the Revision of the Law of War, 47 A.J.I.L. 702.] 

59 At the beginning of the German offensive which later became known as the 
"Battle of the Bulge," an American division was overrun while its finance offi- 
cers were in possession of several hundred thousand dollars in cash which had 
just been issued to them for payroll purposes. Most of these officers elected to burn 
or bury the cash in their possession before their capture. Had they decided to re- 
tain it on their persons, or to distribute it to a few trustworthy soldiers, it would 
still have been governmental, and not personal, funds. There would, therefore, 
have been no basis for not considering it to be "war booty," public property of 
one belligerent captured by another. Downey, Captured Enemy Property 491-92. 

60 Of course, it is possible that he has lawfully taken the money from prisoners 
of war in accordance with the provisions of the fourth paragraph of Article 18, 
given them the required receipt, and entered the transaction in the special regis- 
ter; and that he was himself captured before he had an opportunity to turn the 
money over to the appropriate authorities of his armed force. However, if such 
is the case, once again the fund belongs to his Power of Origin, not to the pris- 
oner of war in whose possession it is found; and it is properly seized by the De- 
taining Power as war booty. (This does not affect the right of the original owner 
to a credit on his prisoner-of-war account; provided that the two belligerents con- 
cerned are able to overcome the administrative problems involved.) 



116 

bodies of the dead and wounded of the Detaining Power ; 61 or that it 
has been given to him by his military authorities for subversive or 
other similar purposes. It is therefore somewhat surprising, to say 
the least, to find the the fourth paragraph of Article 18 provides that 
"[s]ums in the currency of the Detaining Power . . . shall be placed 
to the credit of the prisoner's account." 6 - Just as there is no valid 
justification for his possession of enemy currency, so there is no valid 
justification for permitting him to profit from a possession which in 
all probability originally came about through illegal acts. Perhaps it 
will be possible to circumvent this undesirable result by requiring that 
here, too, the prisoner of war establish that he is, in fact, the "owner" 
of the currency involved. 

The possession by a prisoner of war of the currency of a neutral 
Power is not immediately suspect as it is possible for him to be legiti- 
mately in the possession of this currency. However, the circumstances 
here are likewise such as to warrant an investigation. If it develops 
that the currency actually is the property of the Power of Origin, the 
Detaining Power may treat it as war booty and confiscate it. 63 If the 
prisoner of war establishes ownership, he may, pursuant to the last 
paragraph of Article 18, ask to have it converted into the currency 



61 In SPJGW 1945/2240, 19 February 1945, the following statement appears: 
Since enemy governments do not pay their soldiers in United States money 
or issue it to them, the presumption is justified, in the absence of satisfactory 
evidence to the contrary, that United States money found in the possession 
of a prisoner of war at the time of initial search upon capture was unlaw- 
fully taken from an American soldier, living or dead. When United States 
money is found upon a prisoner of war at such time, an informal investigation 
will be made by an officer of the legality of his possession of it. As this is not 
a criminal but an administrative investigation, proof beyond a reasonable 
doubt is not required in order to decide the question either way. If the investi- 
gating officer concludes that the statement of the prisoner and other evidence 
(if any) presented by him outweighs the prima facie presumption above men- 
tioned, the officer will give the prisoner a receipt for the money and deposit 
it to his credit in a trust fund account. Otherwise the money will be con- 
fiscated. . . . 
See also German Regulations, No. 4, para. 13; and Rundell, Paying the POW 122. 
82 Similarly, Article 59 provides that "[c]ash which was taken from prisoners 
of war. . .at the time of their capture, and which is in the currency of the De- 
taining Power, shall be placed to their separate accounts"; and the first para- 
graph of Article 64 provides that the account of a prisoner of war shall be cred- 
ited with "the sums in the currency of the Detaining Power which were taken 
from him." In this regard, see note 222 infra. 

63 During World War II aircraft crews were frequently furnished with "es- 
cape kits" containing currency of the countries over which they might fly, or 
which they might be able to reach if they were shot down. Obviously, they were 
not the owners of such currency and were not, ?nd would n~t be, entitled to have 
it credited to their prisoner-of-war recounts. German Regulations, No. 39, par - ". 
737. This would also be true as to the g^ld coins which were furnished to aircraft 
crews operating in certain parts of the world. 



117 

of the Detaining Power and credited to his account ; otherwise it will 
be placed in safekeeping for ultimate return to the prisoner of war 
upon his repatriation. 

Finally, there arises the question of the action to be taken by the 
Detaining Power with respect to "invasion" or "occupation" money, 
currency printed by the Power of Origin for use in a specific area and 
during a specific period, and which has no actual value. It is probably 
possible to dispose of this problem by considering such currency as 
falling within the ambit of the phrase "currency other than that of 
the Detaining Power" contained in the last paragraph of Article 18. 64 
The Detaining Power would then unquestionably be justified in refus- 
ing any request for the conversion of such currency for credit to the 
prisoner-of-war account, and would maintain in safekeeping the very 
bills taken from the prisoner of war, just as it would do with any 
nonmoney "articles of value," returning them to the prisoner of war 
"in their original state" upon the termination of his captivity. This 
was the procedure followed by the Germans during World War II 65 
and no objection was made to it, nor can any be perceived. While this 
currency may, at the later date, be completely worthless, this is a 
problem to be resolved between the individual and his Power of 
Origin, the nation which originally issued it. 

From the foregoing, it is fairly apparent that while the 1949 Con- 
vention has added a few provisions intended to ensure that the new 
prisoner of war will be safeguarded in the possession of his money — 
the effectiveness of which will, as heretofore and necessarily, depend 
in large part upon the controls maintained by the Detaining Power 
upon its personnel — it has made no perceptible attempt to solve some 
of the technical problems which have previously arisen in this area 
and which will undoubtedly arise once again in any future major con- 
flict. However, these are basically problems of administration which 
can probably be solved by a commonsense approach and by reci- 
procity. 66 

One other problem which has arisen with respect to the personal 
property of the prisoner of war is worthy of mention — his right to 
sell such property and the right of military personnel of the Detaining 
Power to buy it from him. Neither the 1929 nor the 1949 Convention 
has any provision relating to this problem. 



64 If the "invasion" or "occupation" money was issued by the Detaining Power, 
the problem is the same as if it were actual currency of that Power. 

65 German Regulations, No. 43, para. 802. 

66 The provisions of the 1949 Convention just discussed are, of course, concerned 
solely with the problem of the disposition of cash found in the possession of a 
prisoner of war at the time of his capture. The more general problem of the fi- 
nances of individual prisoners of war is discussed at pp. 194-212 infra. 



118 

In August 1944 The United States Army issued a circular which 
authorized its personnel to purchase articles from prisoners of war. 67 
The British, on the other hand, took the view that because of the un- 
equal bargaining positions of the two parties, to permit such purchases 
might be to open the way to abuse. Accordingly, British military per- 
sonnel were subject to disciplinary proceedings if they trafficked with 
prisoners of war by way of the purchase or barter of the latter's per- 
sonal property. 68 The United States has now accepted the British po- 
sition and its post-World War II manual, like that of the United 
Kingdom, prohibits such transactions. 69 Presumably, this will not pre- 
vent military agencies, such as post exchanges, from buying and of- 
fering for sale items produced by the prisoners of war as a pastime, 
such as art work, handmade jewelry, novelties, 70 etc. Nor is there 
actually any basis for asserting a legal, conventional prohibition 
against the basic practice, potentially pernicious though it may be. 

5. Fingerprinting Prisoners of War 

Although the use of fingerprinting as a means of identification dates 
back to the late nineteenth century, the matter of fingerprinting pris- 
oners of war did not arise until World War I. During that conflict the 
German Government protested against the United States practice of 
photographing and fingerprinting prisoners of war in its custody. The 
United States Government replied that it did not consider fingerprint- 
ing for the purposes of identification to be inhumane, humiliating, or 
disrespectful, and that it would welcome similar action by the Ger- 
mans with respect to American prisoners of war held by them. 71 The 



(57 U.S. War Department Circular No. 353, 31 August 1944. It is reproduced 
substantially in extenso in Downey, Captured Enemy Property 500-02. The cir- 
cular was based upon an opinion contained in SPJGW 1944/6900, 5 July 1944, 
which stated: 

There is nothing unlawful in a soldier of our Army picking up and retain- 
ing small objects found on the battlefield, or buying articles from prisoners 
of war, of the sort which, under the articles quoted, it is unlawful for him to 
take from a prisoner, the wounded, or the dead. 

68 Lauterpacht, Problem 380 n.l. One ICRC expert believed that while the 
practice could be dangerous, and that it would be preferable to prohibit it, the 
United States War Department circular was, on the whole, a satisfactory imple- 
mentation of the relevant provisions of the 1929 Convention, particularly because 
it authorized each commander to take any measures he considered necessary to 
prevent violations of either the letter or the spirit of the Convention. Pilloud, 
Captured Enemy Property, 32 R.I.C.R. at 831. 

09 U.S. Manual para. 94b; British Manual para. 140 n.3. 

70 A visit which the author paid late in 1951 to the prisoner-of-war camps main- 
tained by the United Nations Command at Koje-do in Korea revealed that the 
main occupation of many prisoners of war was the production for sale of a multi- 
tude of novelty items made from used tin cans. See Hermes, Truce Tent 236. 

71 [1918] For. Rel. U.S., Supp. 2, at 35-38 (1933) ; 6 Hackworth, Digest 280. 



119 

1929 Convention again made no mention of fingerprinting. Never- 
theless, during World War II both sides photographed and finger- 
printed prisoners of war. 72 

When the Government Experts met in 1947 the question of finger- 
printing arose, but only in connection with what became the penulti- 
mate paragraph of Article 17, concerning prisoners of war who, be- 
cause of their physical or mental condition, were unable to furnish 
the required identifying information. 73 Even this limited reference 
to fingerprinting by the Detaining Powers was eliminated at the Dip- 
lomatic Conference without anything in the record to explain the 
reason for, or the meaning of, the action. 74 Presumably, it was felt that 
the phrase, "[t]he identity of such prisoners [of war] shall be es- 
tablished by all possible means" (emphasis added) was sufficiently 
broad to include the use of fingerprinting if the Detaining Power de- 
sired to employ this method of identification. Certainly, there is no 
indication that the draftsmen considered fingerprinting to be "inhu- 
mane, humiliating, or disrespectful." In fact, the indications are quite 
to the contrary, as the third paragraph of Article 17 provides that the 
identity card which a State is required to provide to its own personnel 
who may become prisoners of war may include fingerprints; and 
Annex 4A to the Convention, 75 the model identity card, provides space 
for both fingerprints and a photograph. 76 

There appears to be no question but that the United States con- 
strues the Convention as permitting both the fingerprinting and the 
photographing of prisoners of war. After the identification fiasco early 
in the Korean conflict, 77 prisoners of war were both photographed and 
fingerprinted. 78 The same procedure was followed in Vietnam. 79 Cur- 
rent regulations of the United States Army provide for the issuance 
of identity cards with photographs and fingerprints to prisoners of 



72 Concerning the German practice during World War II, see Maughan, 
Tobruk 773; concerning the practice of the United States in Korea, see U.S., MP 
Board, Korea, I, at 101. 

73 1947 GE Report 124. The fifth paragraph of Article 17, as approved at Stock- 
holm, contained a final sentence which stated: "The identity of such prisoners 
[of war] shall be established by all possible means, particularly by the taking of 
fingerprints." (Emphasis added.) Revised Draft Conventions 58. 

74 See 2A Final Record 350-51 ; 2B Final Record 173. 

75 See Annex 4A to Appendix A hereof. 

76 For some unknown reason, the draftsmen elected to refer Annex 4A of the 
Convention solely to Article 4 thereof (see Article 4A(4) and pp. 60-62 supra) 
which, of course, provides for the issuance of identity cards to "[p]ersons who 
accompany the armed forces without actually being members thereof." However, 
this is undoubtedly the identity card which would also be issued in compliance with 
the requirement of the third paragraph of Article 17. 

77 See note 37 supra. 

78 See note 72 supra. 

79 The subject was covered by a number of directives of both the Military As- 
sistance Command Vietnam and the United States Army Vietnam. 



120 

war who lack such documents ; 80 and the fingerprinting of all prison- 
ers of war. 81 It is extremely doubtful that this procedure will engen- 
der any protests from enemy Powers of Origin. More probably, they 
will follow the same path if they have the technical competence to 
do so. 

C. LIFE IN THE PRISONER-OF-WAR CAMP 

We have seen our prisoners of war captured, searched, interrogated, 
and evacuated to the rear, perhaps through a transit camp. Now, what 
of their subsequent life as prisoners of war? The Detaining Power 
is, of course, specifically authorized to subject them to internment 
(Article 21) ; and, as a corollary to that right, it has the duty to 
provide them with maintenance and medical care without charge 
(Article 15). This combined right and duty relates to many of the 
usual problems of life: a roof over one's head and a place to sleep, 
food to eat, clothes to wear, protection against illness, care when sick, 
a way to pass the time when well, 82 etc., etc. And, wisely, the drafts- 
men of the 1949 Convention attempted to lay down specific minimum 
requirements on the Detaining Power in many of these areas, as well 
as in other areas which affect the day-to-day life of the prisoner of 
war. For our purposes, it will be necessary not only to analyze these 
various minimum requirements, but also to attempt to determine their 
probable adequacy in actual practice and the extent to which Detain- 
ing Powers may be expected to comply with them. 

1. Establishment of Prisoner-of-War Camps 

During the wars of the twentieth century it has been generally 
customary to intern prisoners of war in camps established for that 
specific purpose. The preliminary question as to where such prisoner- 
of-war camps may be located is itself of major importance. As we have 
already seen, the prisoners of war must be expeditiously removed 
from the dangers of the combat zone (Articles 19 and 23) ; 83 but this 



«"U.S. Army Regs. 633-50, para 19b and Figure 1 (at 86). 

8 1 Ibid., para. 20 and Figure 2 (at 87). The NATO directive on this subject 
provides for both photograph and fingerprints. STANAG No. 2044, Annex A. 

82 This latter item is more important than it might seem. Boredom and idle 
hands have frequently been the cause of the lack of discipline in, and many of 
the attempted escapes from, prisoner-of-war camps. Lewis & Mewha 57. Much 
of the disorder in the prisoner-of-war camps maintained by the United Nations 
Command at Koje-do unquestionably stemmed from the fact that the prisoners 
of war were not kept busy, a situation upon which Communist techniques bat- 
tened. See note 70 supra. 

83 The problem of transfers from one prisoner-of-war camp to another is dis- 
cussed at pp. 187-194 infra. However, it should be noted at this point that the 
second paragraph of Article 47 covers a situation which, depending upon the 
amount of territory available to a Detaining Power, may frequently arise in a 
war of movement — the approach of the combat zone to an established prisoner-of- 



121 

is not the only limitation on the Detaining Power's right to locate a 
prisoner-of-war camp where this can be most easily accomplished, or 
where it will be most usefully located as a ready source of labor. Ar- 
ticle 22 of the 1949 Convention sets forth the general requirements 
and prohibitions governing the selection of prisoner-of-war camp sites. 
They must be located on land ; 84 they must afford every guarantee of 
hygiene and healthfulness ; they must not, except in unusual circum- 
stances, be located in a penitentiary; 85 and they must not be in un- 
healthful areas, "or where the climate is injurious for them." If this 
latter contingency occurs, perhaps because the prisoners of war are 
originally interned in the region of the place of capture, they "shall 
be removed as soon as possible to a more favorable climate." 

The problem of the climate of the place of internment has long been 
a source of difficulty. 86 During the Boer War (1899-1902), the actions 
of the British Government in transporting Boer prisoners of war to 
India, St. Helena, and Ceylon for internment were protested (by 
members of the British Parliament, by the Boer Government, and by 
the United States in its capacity as Protecting Power) because of the 
allegedly unhealthful climate in each of those places. 87 During World 
War I, the German Government protested against the French trans- 
fer of prisoners of war captured in Europe to Algeria and Morocco, 
again on the basis of allegedly unhealthful climates. 88 Article 9 of the 
1929 Convention attempted to remedy the situation by providing that 
persons "captured in unhealthful regions or where the climate is in- 
jurious for persons coming from temperate regions, shall be trans- 



war camp. The cited article sets forth two alternative requirements, one of which 
must exist in order to justify the transfer of the prisoners of war from the threat- 
ened camp to another: that their transfer can be carried out "in adequate condi- 
tions of safety"; or that remaining where they are will expose them to even 
greater risks than will the transfer. 

84 This was formerly of more importance than it is now. During the Napoleonic 
Wars, for example, ship hulks were the usual place of internment for prisoners 
of war. Lewis, Napoleon 58-60. Nevertheless, the problem did arise again during 
World War II. 1 ICRC Report 248. 

85 Article 22 authorizes this where it is "justified by the interests of the pris- 
oners themselves." During World War II the ICRC found at least one instance 
where the use of a penitentiary as a place of internment was considered to be 
to the advantage of the prisoners of war. Ibid. 

86 The United States exhibited concern in this regard and included provisions 
intended to alleviate the problem if it should occur as long ago as in its Treaties 
of Amity and Commerce with P7-ussia of 10 September 1785 (Article 24), and of 
11 July 1799 (Article XXIV) ; and in Article XXII, paragraph II, of the Treaty 
of Guadalupe Hidalgo with Mexico of 2 February 1848. One pre-World War II 
author credits the provision of the 1785 Treaty with being the progenitor of the 
cognate article of the 1929 Convention. Meitani, Regime 20 & 29. 

87 Flory, Prisoners of War 46-47. In no case was the protest based upon the 
distance from the place of capture to the place of internment. 

? 9 Ibid., 47. 



122 

ported, as soon as possible, to a more favorable climate." Obviously, 
this provision did not meet, and was not even directed at, the 
actions specifically protested in the previous conflicts, which involved 
transfers from the place of capture to an unhealthful region. On the 
other hand, in attempting to solve the problem to which it was related, 
it probably went too far. Problems of this nature were minimal during 
World War II, despite the fact that fighting was going on all over 
the globe, 89 and the changes made in drafting Article 22 of the 1949 
Convention, which were not even the subject of floor debate, were 
probably not intended as changes in the substance of the provisions 
of the 1929 Convention. 

The provisions of the 1949 Convention have been interpreted liter- 
ally and as imposing upon the Detaining Power the obligation to 
transport prisoners of war from internment in a place where the 
climate is unfavorable for any reason," even though it may have been 
the place of capture. When, for example, soldiers of a country located 
in a temperate climate are transported by their Government to fight 
against the armed forces of an equatorial nation and some are captured, 
can the Detaining Power be required to remove them from that area, 
its national territory, in order to intern them in a "more favorable" 
climate (which, normally, will be a climate more closely resembling 
that to which they are accustomed) ? A literal interpretation of the 
second paragraph of Article 22 would require that this question be 
answered in the affirmative. 91 Or, if the troops from the temperate 
climate capture soldiers of the equatorial Power, would lack of ade- 
quate territory under their control, or problems of logistical support, 
justify transporting the prisoners of war to the national territory of 
the Detaining Power, even though this might mean interning them 
in a "less favorable" climate (less favorable in the sense that it will 
be one to which they are not accustomed) ? A literal interpretation 
of that second paragraph of Article 22 would require that this ques- 
tion be answered in the negative. 92 It remains to be seen, but it ap- 



89 1 ICRC Report 248. 

90 Pictet, Commentary 183. 

91 During World War II most of the Germans and Italians captured in Africa 
were ultimately transported to and interned in England, Canada, and the United 
States. Undoubtedly, this removal was, in the majority of cases, to a "more fav- 
orable climate" as far as those prisoners of war were concerned. However, it is 
equally without doubt that their removal was accomplished for the convenience of 
the Detaining Powers; that it was completely unrelated to the provisions of 
Article 9 of the 1929 Convention; and that it would have been made even had the 
result been otherwise. 

92 Of course, under these circumstances the requirements concerning climate 
might well run head-on into the requirement of Articles 19 and 23 concerning the 
removal of prisoners of war from the dangers of the combat zone and the num- 
erous requirements relating to their maintenance. It would seem to the author 
that the requirement concerning climate is probably of lesser importance than the 
others, at least in the vast majority of cases. 



123 

pears extremely doubtful, whether, apart from exceptional cases, De- 
taining Powers of the future will so construe this provision. 93 

This problem of the location of prisoner-of-war camps raises a 
collateral, but related, question — should the enemy be advised of the 
location of camps in which captured members of its armed forces are 
interned, or should this information be withheld for military reasons ? 
Two measures included in Article 23 of the 1949 Convention were 
intended to require that this information be divulged in order to afford 
protection to prisoner-of-war camps against unwitting attack by the 
armed forces of the Powers of Origin of the prisoners of war interned 
therein. The third paragraph of Article 23 requires that the Detaining 
Powers provide "the Powers concerned ,, (the Power of Origin of the 
prisoners of war and its allies) information as to the geographical 
location of prisoner-of-war camps ; and the last paragraph of Article 
23 provides that prisoner-of-war camps (and only prisoner-of-war 
camps) shall, "whenever military considerations permit," be marked 
with the letters "PW" (prisoners of war) or "PG" (prisonniers de 
guerre) so as to be visible from the air. 94 No such provisions were 
contained in the 1929 Convention, and prisoner-of-war camps were 
sometimes attacked by aircraft of the Power of Origin of the prisoners 
of war, or of its allies, unaware of the actual nature of the installa- 
tion being attacked. While, at the urgent behest of the Protecting 
Powers and the ICRC, some belligerents permitted the furnishing of 
information as to the location of prisoner-of-war camps maintained by 
them to their enemies, others did not. 95 The substance of the provi- 



93 In considering the question of climate, the draftsmen of both the 1929 and 
the 1949 Conventions appear to have had in mind primarily persons from temp- 
erate European countries or their equivalents, and only such widespread conflicts 
as World War I and World War II, where prisoner-of-war camps could be located 
in many areas of the globe; and to have given little, if any, consideration to na- 
tionals of other types of countries and to conflicts of a more limited territorial 
extent. 

94 One military pilot who was an Australian representative at the 1949 Diplo- 
matic Conference stated that such markings would afford no protection whatso- 
ever because of the height at which modern bombers fly and the speed at which 
low-flying aircraft travel. 2A Final Record 354. If this was true in 1949, and 
there is no reason to doubt the statement, it has become even more true in the 
light of subsequent technological developments. However, this alone should not 
be the basis for denying the prisoner-of-war camps this type of protection if it 
might possibly be effective in even a few rare instances. 

95 1 ICRC Report 305-19. The British were particularly opposed to the re- 
quired exchange of such information and at the 1949 Diplomatic Conference they 
adhered to their World War II opposition, pointing out that marking prisoner-of- 
war camps in a country with a relatively small geographical area had the effect 
of pinpointing military objectives. 2A Final Record 254, 347, & 354. It is rather 
difficult to understand why this opposition, which resulted in the inclusion of the 
clause "whenever military considerations permit" in the fourth paragraph of Art- 
icle 23 did not extend to the preceding paragraph of that Article which requires 



124 

sions now included in the 1949 Convention were originally proposed 
by the ICRC. With the methods of electronic navigation and target 
finding developed after World War II, it is probable that if informa- 
tion as to the geographical location (longitude and latitude) of a 
prisoner-of-war camp is furnished pursuant to the third paragraph 
of Article 23, the need for marking in order to be able to identify such 
a camp from the air will be greatly reduced. If this is so, the "military 
considerations" limitation with respect to marking will not be too 
important. 

2. Quarters 

The physical requirements for prisoner-of-war camps are set forth 
in the first paragraph of Article 25 of the 1949 Convention which, 
basically, specifies that "prisoners of war shall be quartered under 
conditions as favorable as those for the forces of the Detaining Power 
who are billeted in the same area." 96 This obviously establishes each 
Detaining Power's national standard as its minimum international 
standard, the one which must be met by it under any and all circum- 
stances. However, it is possible that the conditions under which the 
forces of the Detaining Power are normally billeted in an area are 
such that they would be detrimental to the health of prisoners of war 
accustomed to quite another standard. To meet this situation, the 
first paragraph of Article 25 continues with two added requirements : 
that the conditions according to which the prisoners of war are billeted 
must take into consideration their "habits and customs" ; and that 
in no case shall those conditions be such as to be prejudicial to their 
health. While the desirability of these two additions to the Detaining 
Power's national standard can probably not be denied, it is extremely 
difficult to envision a situation wherein a Detaining Power would 
provide prisoners of war held by it with quarters superior to those 
provided for its own troops in the same area. 97 

The basic general requirements are enumerated in the first paragraph 
of Article 25, and the specifics are set forth in the second paragraph 
thereof. The requirement of conditions as favorable as those furnished 
the Detaining Power's own troops in the same areas means that dormi- 
tories for prisoners of war must have at least the same total surface 
and minimum cubic space, the same general installations (presumably 



the giving of "all useful information regarding the geographical location of pris- 
oner of war camps." The ICRC construes this latter provision to encompass ade- 
quate information in order "to enable the camp to be pin-pointed on a map." Pic- 
tet, Commentary 190. 

96 This is referred to as the "principle of assimilation." Ibid., 192 n.2. 

97 We will find that in other areas, also, the Convention establishes a better 
than national standard as the standard of treatment of prisoners of war. See, e.g., 
note 111-94 infra. Idealistic as its policies naturally are, the ICRC has, to some 
extent, also recognized this problem, Pictet, Commentary 194. 



125 

the same proportion of sanitary facilities such as washbasins, 
showers, toilets, washtubs, etc.), the same bedding, and the same 
number of blankets. Further, the third paragraph of Article 25 re- 
quires that the quarters furnished prisoners of war must be protected 
from dampness, must be adequately lighted and heated (particularly 
between dusk and lights-out, which is usually "free" time for the 
prisoners of war), and must have adequate precautions taken against 
the dangers of fire. 98 

Assuming complete compliance with the foregoing requirements, 
let it not be thought that the prisoner of war will be living in pam- 
pered comfort and luxury. Far from it! A Detaining Power can follow 
the provisions of Article 25 of the 1949 Convention to the letter and 
for many prisoners of war their quarters will still be barely more 
than marginal. Nevertheless, they will unquestionably aiford comfort 
and luxury compared to those furnished where the 1949 Convention is 
not applicable, or where applicable not honored by a belligerent." 

It is appropriate to note that in addition to the requirements of 
the 1949 Convention aimed at physical comfort, there is also a very 
important provision aimed at physical protection. This is the second 
paragraph of Article 23, which imposes upon the Detaining Power 
the obligation of providing the prisoners of war with shelters against 
air bombardment and other hazards of war equal to those which are 
provided for its civilian population. 100 The same rule is applied to any 
other types of protection which are furnished to the civilian popula- 
tion. 101 Moreover, the prisoners of war must be permitted to avail 
themselves of the use of such shelters upon the sounding of the alarm, 
the only exceptions being those prisoners of war assigned to specific 
protective duties related to their quarters, presumably such as fire 
wardens, etc. 



08 The second and third paragraphs of Article 25 of the 1949 Convention are 
little more than redrafts of Article 10 of the 1929 Convention. It has been stated 
on behalf of Switzerland, which acted as Protecting Power for some 34 countries 
during World War II, that there was general compliance with Article 10 during 
that conflict, except in the Far East and to some extent in Germany. Janner, 
Puissance protectrice 53-54. For statements of United States practice during 
World War II, see McKnight, POW Employment 50; Rich, Brief History 395. 

99 As a practical matter, only rarely will a new prisoner-of-war camp meet all 
of the physical requirements of Articles 25, 29, 30, 34, 38, etc., at the time of the 
internment there of the first prisoners of war. 1 ICRC Report, 248-49. However, 
the Detaining Power would be expected to exert itself to meet these requirements 
as soon as possible. 

ioo Here, again, we have the national standard applied to prisoners of war — but 
the civilian standard, not the military, and witlr"no provision which would re- 
quire, under some circumstances, a better than national standard. 

101 Conceivably, this could include antiradiation garments, protective masks, de- 
contamination chemicals and equipment, etc. 



126 

3. Food 

Naturally, food is an extremely important part of the "maintenance" 
which the Detaining Power is required by Article 15 of the 1949 
Convention to provide free of charge to prisoners of war. 

Article 7 of the 1907 Hague Regulations provided that in the absence 
of a special agreement with respect to "board, " prisoners of war should 
be "on the same footing as the troops of the Government who cap- 
tured them." During World War I most of the belligerents found it 
necessary to negotiate special agreements covering, among numerous 
other subjects, that of food for prisoners of war. One such agreement 
provided that "the daily food ration which the prisoner of war receives 
ought not to be less than that of the civilian population [of the Detain- 
ing Power] " ; but with the caveat that such ration would necessarily 
depend upon the availability of food in the country in which the 
prisoner of war was interned. 102 Other agreements adopted the for- 
mula of specifying the minimum daily caloric intake for prisoners of 
war, who were placed in three categories: non workers (2,000 calor- 
ies) ; ordinary workers (2,500 calories) ; and workers performing 
strenuous labor (2,850 calories). 103 

When the 1929 Convention was drafted, a modification of the provi- 
sion contained in the 1907 Hague Regulations was adopted. While 
retaining the ration of the troops of the Detaining Power as the 
standard for prisoners of war, it was specified in Article 11 that the 
"troops" referred to were those "at base camps" ("troupes de depot"). 
Experience during World War II disclosed numerous objections to 
this provision. Some belligerents had no "base" or "depot" troops to 
furnish the required standard. 104 Rations for the base troops of the 
different belligerents varied widely, so that it was possible for a 
Detaining Power to comply with the obligation imposed upon it in 
this respect and still have great suffering among the prisoners of 
war. 105 National diets also varied widely, so that the adequacy of the 
ration furnished when judged on a caloric standard did not always 



102 Final Act of the Conference of Copenhagen, Title IV, Chapter III, Article I. 

103 Article 26 of the 1918 Agreement between France and Germany concerning 
Prisoners of War. (Article 27 of that Agreement provided that prisoners of war 
were to receive the same meat ration as the civilian population.) Article XLVI 
of the 1918 Agreement between the British and German Governments concerning 
Combatant and Civilian Prisoners of War contained a similar approach to the 
problem, with an additional specific provision with respect to the daily ration of 
bread. 

104 l ICRC Report 254. 

105 Thus a survey made after World War II disclosed that "during good times 
the Japanese base troops received approximately 1500 calories per day, the German 
base troops approximately 2500 calories per day, Italian base troops approximately 
2300 calories per day, but American base troops receive approximately 3300 cal- 
ories per day." Feilchenfeld, Prisoners of War 36. 



127 

ensure the maintenance of health. 106 Of course, the major problem in 
this area is that when war conditions and a blockade reduce a country's 
food supply to a bare subsistence level, or even lower, how can that 
country possibly be expected to meet the obligation which it has under- 
taken with respect to prisoners of war? 107 

The draftsmen of the 1949 Convention were fully aware of these 
many difficulties and attempted to meet them insofar as possible. The 
use of the "depot troop" ration as a standard was eliminated and the 
use of either a caloric or a national standard as a substitute was re- 
jected. Instead of an absolute standard, the continued health of the 
individual prisoner of war was adopted as the standard. Thus, the 
first paragraph of Article 26 of the 1949 Convention provides that 
"the basic daily food rations shall be sufficient in quantity, quality and 
variety to keep prisoners of war in good health and to prevent loss of 
weight or the development of nutritional deficiencies." Moreover, it 
also contains a requirement that the Detaining Power take into con- 
sideration the "habitual diet" of the particular prisoner of war. While 
the overall effect of the first paragraph of Article 26, with its relative, 
rather than absolute or national, standard, will very probably turn 
out to be an improvement over that of its predecessor, it would be 
extremely naive to believe that even loss of health or weight, or the 
development of nutritional deficiencies, will cause the Detaining Power 
to increase and improve the diet furnished prisoners of war at a time 
when its own civilian population (and perhaps its armed forces) is 
subsisting on a substandard diet. 

It has been suggested that the problem is not without solution and 
that there are, in fact, two remedial courses of action available to the 



106 The experience in the United States during World War II was that there was 
actually a waste of food when the national dietary habits of the prisoners of war 
were ignored. Tollefson, Enemy Prisoners of War 57. The United States included 
such dietary habits in its regulations governing the furnishing of rations for pris- 
oners of war. POW Circular No. 1, para. 59; Mason, German Prisoners of War 
207. So did the Germans. German Regulations, No. 11, para. 21. The American 
prisoners of war in Japanese hands were not so fortunate (see Kunz, Treatment 
102) despite a proposal made by the United States on 13 February 1942 [10 Dept. 
State Bull. 146 (1942)] and a promise made by Japanese Foreign Minister Togo 
shortly thereafter. I.M.T.F.E. 1100-01. 

107 Feilchenfeld, Prisoners of War 13 & 39. Relief packages from the Power of 
Origin, allied States, neutral States, and international relief organizations (see 
Articles 72 and 73 and Annex III to the Convention, discussed at pp. 158-163 
infra) can, of course, be extremely helpful in this regard. However, even these will 
not fully remedy the situation if the Detaining Power does as Germany did during 
World War II — consider that the receipt of food packages reduces pro tanto the 
obligation to furnish prisoners of war with even the substandard ration which it 
had previously been furnishing. 1 ICRC Report, 255. Maughan, Tobruk 796. The 
second paragraph of Article 72 of the 1949 Convention now specifically prohibits 
such action by the Detaining Power. 



128 

Detaining Power under these circumstances : ( 1 ) the transfer of the 
prisoners of war to another Party to the 1949 Convention pursuant 
to Article 12 of the Convention; or (2) repatriation pursuant to 
Article 109 thereof. 108 As any ally of the Detaining Power would 
probably also have less than the food supply required for its existing 
needs (otherwise it would already be furnishing direct assistance to 
the Detaining Power), the only possible transfer of the custody of 
prisoners of war which would avoid repatriation but would remedy 
the situation would be to a neutral nation. This could be accomplished 
under Articles 6, 109, and 111 of the Convention. 109 The prisoners of 
war would then, of course, be lost to the former Detaining Power 
and its allies, as a labor force but would be interned in a neutral 
country and would be equally unavailable to the Power of Origin. On 
the other hand, while a special agreement for repatriation pursuant 
to which the repatriated prisoners of war would be excluded either 
wholly or in part from further military service during the then cur- 
rent war could be negotiated under Articles 6, 109, and 117 of the 
Convention, 110 such an agreement would probably be difficult to reach 
inasmuch as it would at least add the repatriated prisoners of war to 
the labor force of their Power of Origin and, to that extent, would 
increase its war-making potential. 111 

While the internationally accepted obligation to provide prisoners 
of war with an adequate ration to maintain health is, of course, the 
major problem in this area of protection afforded to prisoners of war 
by the 1949 Convention, there are several related problems. It is 
obvious that to maintain the health of a prisoner of war performing 
heavy labor will require more food than to maintain the health of a 
prisoner of war who is performing work of a sedentary nature, or 
no work at all. Even though this will automatically increase the re- 
quirement on the Detaining Power under the relative standard already 



108 Dillon, Genesis 45. A third possible course of action (relief shipments) is dis- 
cussed at pp. 158-163 infra. 

109 The first paragraph of Article 6 provides for special agreements between the 
belligerents provided that such agreements do not "adversely affect" the prisoners 
of war concerned, "nor restrict the rights" conferred upon them by the Convention; 
the second paragraph of Article 109 provides for special agreements between bellig- 
erents for internment of longtime prisoners of war in a neutral country; and 
Article 111 provides for tripartite agreements between the Detaining Power, the 
Power of Origin, and a mutually acceptable neutral Power for the internment of 
prisoners of war in neutral territory. Concerning such internment, see pp. 413-416 
infra. For a discussion of agreements between the opposing belligerents, see pp. 
84-86 supra. 

110 Concerning Articles 6 and 109 see the preceding note. Article 117 provides 
that no repatriated prisoner of war "may be employed on active military service." 
See note VII-92, infra. 

111 It would undoubtedly also improve morale and the will to fight in the country 
to which the prisoner of war had been repatriated. 



129 

discussed, it was, nevertheless, made the subject of special provision. 
The second paragraph of Article 26 again adopts a relative standard 
to meet this situation, requiring the Detaining Power to provide 
prisoners of war who work "with such additional rations as are neces- 
sary for the labor on which they are employed." However, the first 
paragraph of Article 51 appears to adopt the national standard for 
civilian workers in similar work as the minimum standard. 112 

An adequate supply of drinking water can, at times, be even more 
important than food. 113 For this reason, the third paragraph of Article 
26 contains the flat requirement that "sufficient drinking water shall 
be supplied to prisoners of war." 114 

The preparation and distribution of the food issued to prisoners 
of war is another aspect of the problem which it was felt necessary 
to cover with particularity in the 1949 Convention. Thus the fourth 
paragraph of Article 26 authorizes and requires the Detaining Power 
to use prisoners of war in connection with the preparation of their 
food (including both the food supplied by the Detaining Power and 
any other food in their possession, such as that received in relief 
packages, that purchased at canteens, etc.). The fifth paragraph of 
Article 26 requires the Detaining Power to provide adequate messing 
facilities; the third paragraph of Article 44 requires the Detaining 
Power to facilitate the supervision of officers' messes by the officer 
prisoners of war ; and the second paragraph of Article 45 contains a 
similar provision with respect to the supervision by enlisted prisoners 
of war (noncommissioned officers and other ranks) of their messes. 

Finally, there is one further very important provision of the 1949 
Convention concerning food. The third paragraph of Article 87 pro- 
hibits collective punishments generally. Nevertheless, because of the 



112 The first paragraph of Article 51 provides that working conditions, including 
food, "shall not be inferior to those enjoyed by nationals of the Detaining Power 
employed in similar work." This, of course, establishes a national standard. Pre- 
sumably, the Detaining Power would be expected to furnish the working prisoner 
of war with the higher of the two standards, relative under the second paragraph 
of Article 26, or national under the first paragraph of Article 51. Concerning the 
diet of prisoner-of-war patients, see note 129. 

113 In the French version of the 1949 Convention, Articles 20, 26 and 46 all use 
the term "eau potable" In the English version, the second paragraph of Article 20 
refers to "potable water," but the third paragraphs of Articles 26 and 46 refer to 
"drinking water." It appears that this was merely careless draftsmanship. See 2A 
Final Record 347. 

114 During the "Death March" in the Philippines in April 1942, in semitropical 
heat, a great many deaths resulted from the lack of water — or from frantic at- 
tempts by the marching prisoners of war to obtain water. I.M.T.F.E. 1043-45. The 
requirement that the Detaining Power provide an adequate supply of water (and 
focd) during such an evacuation is now specifically covered by the second para- 
graph of Article 20 of the 1949 Convention. See pp. 101-102 supra. The third para- 
graph of Article 46 contains a similar provision with respect to transfers between 
prisoner-of-war camps. 



130 

alacrity with which many Detaining Powers have had recourse to the 
reduction of food allowances as a method of punishing groups of 
prisoners of war for the alleged misconduct of some few of them, it 
was felt necessary to specifically prohibit collective measures with 
respect to food and the last paragraph of Article 26 so provides. 115 

4. Clothing 

The first paragraph of Article 18 provides that captured prisoners 
of war may retain "articles used for their clothing." Article 27 elabor- 
ates upon the requirements imposed upon the Detaining Power with 
respect to the supplying of prisoners of war with clothing. This Article 
places upon the Detaining Power the requirement that it supply 
prisoners of war with "sufficient quantities" of clothing, allowance 
being made for "the climate of the region where the prisoners are 
detained." It further authorizes the issuance to prisoners of war of 
captured uniforms of the forces to which they belonged, if such 
captured uniforms are suitable for the climate in which they are to 
be used. Moreover, the requirement that clothing in sufficient quanti- 
ties be supplied to prisoners of war is a continuing one, the second 
paragraph of Article 27 requiring that "regular replacement and re- 
pair" of clothing shall be assured by the Detaining Power. Finally, this 
Article makes provision for the issuance to prisoners of war by the 
Detaining Power of clothing appropriate to the work to which they 
are assigned. 116 

The provisions of Article 27 are substantially those contained in 
Article 12 of the 1929 Convention. Few problems arose during the 
course of World War II with regard to the issuance of clothing to 
prisoners of war. The main difficulty which did arise was that a point 
was reached in the war at which a number of countries found it im- 



115 The last sentence of Article 26 of the 1949 Convention is actually a verbatim 
reproduction of the last sentence of Article 11 of the 1929 Convention; and the 
third paragraph of Article 87 of the 1949 Convention (prohibiting collective pun- 
ishments generally) is an amplification of the provisions of the last sentence of 
Article 46 of the 1929 Convention. A violation of the provisions of the last sentence 
of Article 26 by a belligerent would, in most cases, constitute a violation of the 
relatively more important provisions of the first paragraph of Article 26. [During 
the rioting at Koje-do in Korea in 1952 (see note V-8 infra), in order to move re- 
calcitrant Communist prisoners of war to smaller, more manageable, prisoner-of- 
war compounds where control by the Detaining Power could be reestablished, the 
military authorities of the United Nations Command made food available in the 
new, small compounds and refused to make it available in the old, large compounds. 
If the prisoner of war wanted to eat, he had to move to the new compound. The 
ICRC Delegate took the position that this was collective punishment involving 
food. The United Nations Command took the position that as food was available 
in the new compounds, to which the prisoners of war were free to move, there was 
no denial of food to them. Harvey, Control 142-43; Vetter, Mutiny 177.] 

116 This requirement is, in effect, reiterated in the first paragraph of Article 51. 



131 

possible to comply with the requirement for the issuance of adequate 
clothing. When this occurred, the Powers to which the prisoners of 
war belonged remedied the situation by sending uniforms through 
relief channels to the enemy prisoner-of-war camps. These shipments 
were made with the understanding that they were not to be considered 
as in any way releasing the Detaining Power from the obligations 
imposed upon it by the provision of the 1929 Convention and that the 
uniforms so furnished were to be regarded as a supplement to, and 
not as a replacement for, those which the Detaining Power was re- 
quired to furnish. With the exception of Germany, the Detaining 
Powers concerned accepted and applied this principle. 117 

5. Hygiene and Medical Care 

The maintenance of the health of prisoners of war is perhaps the 
major problem with which these Conventions are concerned. 118 The 
provisions of the 1949 Convention relating to this problem are numer- 
ous and detailed, and full compliance with them would unquestionably 
mean the survival of many prisoners of war who, under less favorable 
conditions, would succumb to the illnesses and diseases which are 
endemic in crowded prisoner-of-war camps. Unfortunately, however, 
here once again we find that, despite the broad coverage of the subject 
in the 1949 Convention, there are actually only a few instances where 
its provisions go beyond the limits of the predecessor 1929 Convention. 
Perhaps the draftsmen at Geneva felt that the provisions of the 1929 
Convention in this area were adequate if complied with and only 
required minimum clarification in order to accomplish the desired 
purposes. 

The basic provision concerning medical care is Article 15, which 
binds the Detaining Power to provide prisoners of war with "the 
medical attention required by their state of health." This provision 
is, of course, merely a general requirement containing no standards — 
but it sets the stage for what is to come. The detailed provisions with 
respect to the hygienic conditions which the Detaining Power is re- 
quired to maintain and the medical attention which it is bound to 
provide to the prisoners of war are contained in Articles 29, 30, and 



l ** 1 ICRC Report 258. This limitation would appear to be rather meaningless. 
If a Power of Origin feels the imperative need to furnish clothing for its military 
personnel held as prisoners of war by the enemy because the enemy Detaining 
Power is itself completely unable to furnish that clothing, it accomplishes very 
little to assert that the Detaining Power is not relieved of its basic responsibility 
in this regard — a responsibility which it concededly is not in a position to meet. 
The problem here is quite different from that with respect to food. See note 107 
supra. 

118 Obviously, the provisions of the Convention which are concerned with shelter, 
food, clothing, etc., are all of major importance in maintaining the health of the 
prisoner of war. 



132 

31. 119 It is primarily with the provisions of these Articles that we 
will be concerned. 

Article 29 is substantially the same as Article 13 of the 1929 Con- 
vention. 120 It places upon the Detaining Power, in a number of speci- 
fied areas, the duty to take all measures necessary to maintain a 
standard of sanitation which will "ensure the cleanliness and healthf ul- 
ness of camps and . . . prevent epidemics." 121 Specifically, the Detain- 
ing Power must provide prisoners of war with clean and hygienic 
toilet facilities, accessible 24 hours a day ; 122 bath and shower facilities 
and the time to use them; and, finally, water and soap in sufficient 
quantities both for their personal cleanliness and for washing laundry. 
Actually, the only substantive changes from the 1929 Convention are 
that the requirement that prisoners of war be provided with a suffi- 



119 The health of the prisoner of war is also frequently referred to in the context 
of other problems, several of which have already been discussed and others of 
which will be discussed below. Thus, wounded and sick prisoners of war need not 
be evacuated from the battlefield immediately after capture [Article 19, discussed 
at pp. 99-100 supra] ; health limitations are placed on the locating of prisoner-of- 
war camps [the first two paragraphs of Article 22, discussed at pp. 120-123 supra] ; 
the quarters provided for prisoners of war must not be such as to be "prejudicial to 
their health" [Article 25, discussed at pp. 124-125 supra] ; the food with which 
they are provided must be such as to keep them "in good health" [Article 26, dis- 
cussed at p. 127 supra] ; wounded and sick prisoners of war may not be transferred 
between prisoner-of-war camps [Article 47, discussed at p. 191 infra] ; etc. 
See also, the provisions of the 1949 Convention setting the standards of medical 
care required for a prisoner of war who is the victim of an industrial accident or 
who contracts an industrial disease [Article 54, discussed at pp. 250-251 infra] ; 
and outlawing acts which would 'seriously endanger the health of a prisoner of 
war" and providing sanctions for so doing or for subjecting a prisoner of war to 
"physical mutilation or to medical or scientific experiments" or to "biological ex- 
periments" [Articles 13 and 130, discussed at pp. 358-360 infra], 

120 The fourth paragraph of Article 13 of the 1929 Convention is now found, in 
substance, in the second paragraph of Article 38 of the 1949 Convention. 

121 Article 29, first paragraph. During World War II the United States appar- 
ently discovered that the problem of general sanitation and personal cleanliness 
existed in both directions as it found itself obliged to issue a directive requiring 
prisoners of war to "observe all sanitary measures necessary to assure the cleanli- 
ness and healthfulness of camps and to prevent epidemics. Insanitary habits will 
not be tolerated." POW Circular No. 1, para. 68. Such a directive is unquestionably 
authorized by virtue of the Detaining Power's duty to ensure cleanliness. Pictet, 
Commentary 208. 

122 Article 29, second paragraph. In the discussion of this Article contained in 
Pictet, Commentary 207, the authors refer to the finding of the ICRC that during 
World War II toilet facilities ("conveniences") were frequently not accessible dur- 
ing the night, and then state that "the new Convention makes an express stipula- 
tion in this regard." As the provisions relating to this matter contained in the 
official French versions of the 1929 and 1949 Conventions are absolutely identical 
("jour et nuit"), it is difficult to see how the implications of the Commentary state- 
ment can be justified. If a Detaining Power does not meet its obligations in this 
respect, it will be in violation of the provision of the 1949 Convention just as other 
Detaining Powers were in violation of the same provision of the 1929 Convention. 



133 

cient quantity of water for bodily cleanliness is increased to require 
the Detaining Power to provide both sufficient water and soap, not 
only for bodily cleanliness but also for washing personal laundry; 
and the further requirement that installations, facilities, and time 
also be provided to the prisoners of war for these purposes. 123 

The duty to take all measures necessary to prevent epidemics con- 
tained in Article 29 must not be overlooked. It is this duty which 
both obligates and authorizes the Detaining Power to provide prisoners 
of war with the inoculations and vaccinations needed to immunize 
them from the outbreak and spread of the numerous diseases such as 
typhus, typhoid, paratyphoid, cholera, smallpox, plague, etc., which 
have historically appeared where men were closely confined over long 
periods of time. 124 

The medical care and attention to which the prisoners of war are 
entitled and which the Detaining Power is obligated to give them is 
set forth in Articles 30 and 31. Basically, there is a dual coverage 
with respect to the problem of the ascertainment of the need of any 
individual prisoner of war for medical treatment. At least once a 
month every prisoner of war must receive "medical inspections." 
This "inspection" includes weighing and weight recording, determina- 
tion of general health condition, technological tests to detect the 
presence of contagious diseases, etc. 125 The purpose of this procedure 
is obviously to permit the identification of ailments before the appear- 
ance of subjective symptoms, particularly those ailments which could 



123 Article 29, third paragraph. The 1929 Convention stated that camps "shall be 
as well provided as possible" with baths and showers. The 1949 Convention con- 
tains the flat admonition that the camps "shall be furnished" with these facilities. 
This change would seem to have closed the loophole of self-excuse under which the 
Detaining Power might previously have attempted to justify failure to comply 
with the requirements of the Convention in this respect. 

124 The term "authorizes" is used intentionally. If a Detaining Power considers 
it essential to give all prisoners of war held by it, or all prisoners of war in a par- 
ticular camp, a generally recognized and medically accepted immunization, even by 
force if necessary, such a procedure is entirely within its authority in the execu- 
tion of its obligation to prevent epidemics among the prisoners of war in its cus- 
tody. Of course, should the medication used not be one recognized and accepted by 
the medical profession generally, or should it be a known defective medication, the 
individuals involved on the part of the Detaining Power would lay themselves open 
to the charge that the prisoners of war were being used as human guinea pigs, in 
direct violation of the first paragraph of Article 13, and they would be subject to 
the sanctions of Articles 129 and 130. See the discussion of this subject at pp. 358- 
360 infra. 

125 Article 31. The United States contemplates a medical "examination" of every 
prisoner of war upon arrival at the prisoner-of-war camp and a monthly "inspec- 
tion" by a medical officer which will include the recording of the weight of the 
prisoner of war. POW Circular No. 1, para. 66 and Figure 3. For a further dis- 
cussion of the monthly "medical inspection" required by Article 31 and the monthly 
"medical examination" required by Article 55 in connection with the working pris- 
oner of war, see pp. 219-221 infra. 



134 

be transmitted to other prisoners of war and which can exist and 
even enter the contagious or infectious stage without the ailing per- 
son being aware of his condition. 126 The other side of the coin, and the 
second aspect of the determination of the existence of a need for 
medical treatment, consists of the right granted to a prisoner of war 
by the Convention to seek medical examination on his own initiative. 127 
The prisoner of war who believes that he has a condition warranting 
medical attention must be permitted to obtain such attention so that 
a determination may be made by qualified medical personnel as to 
the actual existence of an ailment, its identity if it does exist, and the 
treatment required. The addition of this provision in the 1949 Con- 
vention undoubtedly resulted from the problems in this area encoun- 
tered by the ICRC during World War II. 128 

A second basic requirement in the medical field is that there must 
be an ''adequate" infirmary in every prisoner-of-war camp. The size 
and capabilities of the infirmary will necessarily depend upon the 
manner in which medical care is organized by the particular Detain- 
ing Power — provided, always, that whatever the organization, it must 
be such as to provide the medical care required by the prisoner of 
war. 129 Thus, one Detaining Power might organize the camp infirm- 
aries so as to provide only day-to-day medical care, with the sick or 
injured prisoner of war being transferred to a more elaborate medical 
installation outside the prisoner-of-war camp when his illness or 
injury requires more sophisticated treatment than is available at 
the local infirmary. 130 Under these circumstances, the Convention 



126 This is similar to the efforts of voluntary civilian organizations during peace- 
time to have everyone submit himself regularly to the various technical checks for 
tuberculosis, diabetes, heart disease, etc. 

127 Article 30, fourth paragraph. This right is established negatively — by pro- 
hibiting the Detaining Power from preventing a prisoner of war from applying 
for medical treatment. There are certain merits in establishing prisoner-of-war 
rights through the medium of prohibitions on the actions of the Detaining Power 
where such a procedure is appropriate. The potential dangers inherent in this par- 
ticular provision, whether stated affirmatively or negatively, and which were ap- 
parently overlooked or disregarded by the 1949 Diplomatic Conference, are dis- 
cussed in connection with Article 55, at p. 220 infra. 

128 1 ICRC Report 265. Even more reprehensible was the deliberate withholding 
by the Chinese in Korea of badly needed medical attention from prisoners of war 
who refused to accept the Communist ideological thesis — the so-called "reaction- 
aries." U.K., Treatment 22. 

129 Article 30, first paragraph. The infirmary must also be capable of providing 
an "appropriate diet" for the condition for which the prisoner of war is receiving 
treatment. 

130 During World War II the United States pursued the following method of pro- 
viding medical care at all levels: "The camp dispensary, under the supervision of 
the camp surgeon, held the usual daily sick call and gave the same infirmary treat- 
ment as afforded bv any unit surgeon. Those in need of hospital care were sent to 
the station [camp] hospital. If need of specialized treatment or prolonged hospital- 



135 

specifically provides that the prisoner of war needing special treatment 
must be admitted to any medical installation, military or civilian, 
where the necessary treatment is available. 131 Other Detaining Powers 
might organize their camp infirmaries in such a manner that each of 
them would be completely competent to provide any conceivable medi- 
cal care which could be required by a prisoner of war — from first aid 
for a cut finger to heart or brain surgery. 132 

In addition to the foregoing basic requirements, there are a number 
of other provisions relating to medical care which, while not of general 
application, are certainly of major importance in the circumstances 
under which they are applicable. Thus, there are requirements that, 
if necessary, isolation wards must be established for the treatment 
of cases of contagious and mental diseases ; 133 that a prisoner of war 
whose condition is such as to require special medical treatment or a 
special operation must be given such care even if his repatriation is 
imminent; 134 that special facilities must be established for the care 
and rehabilitation of the disabled (presumably amputees and those 
who have suffered some similar disabling condition), and particularly 
of the blind; 135 that the Detaining Power must, if requested by a 
prisoner of war, furnish to him an official certificate, and forward a 
duplicate thereof to the Central Prisoners of War Agency, 136 contain- 
ing information with regard to the nature of the illness or injury for 
which he was treated, and the duration and kind of treatment received ; 
and that the costs of medical treatment, including the costs of any 
necessary "apparatus" must be borne by the Detaining Power. 137 



ization was indicated, prisoners [of war] were transferred to a general hospital." 
Rich, Brief History 409. The author was informed that in the Indian prisoner-of- 
war camps for Pakistani prisoners of war (1972-74), the retained Pakistani medi- 
cal officers were permitted to perform only minor first aid treatment, more serious 
cases being sent, when space became available, to an Indian military hospital. 

131 Article 30, second paragraph. 

132 This is probably a more utilitarian method of operation for a very large con- 
centration of prisoners of war, as it obviates the need for prisoner-of-war transfers 
from camp to outside hospital, for prisoner-of-war wards in hosiptals ill equipped 
for such an arrangement, etc. Moreover, there will frequently be sufficient prisoner- 
of-war or retained medical personnel (see discussion at pp. 70-73 supra) available 
to man a camp medical installation competent to provide complete medical services. 

133 Article 30, first paragraph. 

134 Article 30, second paragraph. 

135 Ibid. The emphasis with reference to the blind resulted from the experiences 
of World War II and the belief that the sooner their rehabilitation began, the 
better their overall condition would be. 2A Final Record 259. 

136 Concerning this agency, see op. 154-158 infra. Similar provisions with respect 
to industrial illnesses and injuries are discussed at pp. 249-252 infra. 

137 The second paragraph of Article 14 of the 1929 Convention provided merely 
that the Detaining Power w^uld bear the costs of "temporary prosthetic equip- 
ment." The last paragraph of Article 30 of the 1949 Convention attempts to elab- 
orate in this regard, specifying that the Detaining Power must provide "dentures 



136 

The third paragraph of Article 30, provides that prisoners of war 
shall, preferably, receive medical attention from the medical personnel 
of the power on which they depend (the Power of Origin) "and, if 
possible, of their nationality." 138 This provision, which has no real 
counterpart in the 1929 Convention, must be read in conjunction with 
Articles 32 and 33, 139 which specify the functions to be performed by 
captured medical personnel of various categories, some of whom have 
a basic right to be repatriated and may be retained by the Detaining 
Power only insofar as the needs of the prisoners of war may require. 140 

There is one other aspect of the problem of maintaining the health 
of prisoners of war which, although receiving comparatively little 
attention in the Convention, is of major importance. This concerns 
the availability of time and space for outdoor physical activities, such 
as calisthenics and sports. The first paragraph of Article 38 admon- 
ishes the Detaining Power to "encourage" the participation of pris- 
oners of war in sports and games, 141 and obligates it to provide them 
with "adequate premises and necessary equipment." The second para- 



and other artificial appliances, and spectacles." While the intention of the drafts- 
men was undoubtedly to liberalize the provision by making specific references to 
dentures and spectacles, which had not always been provided by Detaining Powers 
during World War II (1 ICRC Report 266), the use of the phrase "dentures and 
other artificial appliances, and spectacles" to amplify the previous reference in the 
provision to "apparatus" may, in other respects, be found to be retrogressive. Does 
its use in place of "temporary prosthetic equipment" affect the obligation of the 
Detaining Power to provide artificial limbs for amputees? It is certainly to be 
hoped that no Detaining Power will so construe it — but Detaining Powers are not 
noted for the liberal construction of international conventions establishing their 
obligations to prisoners of war. It would have been much better had the term 
"prosthetic equipment" been retained in the enumeration in the provision of the 
Convention. 

138 This paragraph was the occasion for some discussion at the 1949 Diplomatic 
Conference. The representative of the United States emphasized the need for a 
prisoner of war to be able to communicate with the medical personnel who were 
treating him, while the representative of the United Kingdom believed that the 
prisoner of war should be treated by medical personnel from the armed forces in 
which he was serving when captured. 2A Final Record 472. The decision was 
reached to include both suggestions. Ibid., 476 & 382. 

139 And also with Article 28 of the First Convention. 

140 For a discussion of "retained personnel," see pp. 70-74 supra. 

141 Article 38 opens with the words "[w]/iz7e respecting the individual prefer- 
ences of every prisoner, the Detaining Power shall encourage the practice of in- 
tellectual, educational, and recreational pursuits, sports and games. . . ." (Em- 
phasis added.) The italicized words were intended to constitute a prohibition on 
enforced attendance by prisoners of war at propaganda lectures, etc. See pp. 139- 
142 infra. Unfortunately, to be consistent, this means that the Detaining Power 
must also respect the individual preferences of prisoners of war who do not desire 
to exercise even though this can be only of benefit to their health. However, it is 
assumed that the Detaining Power would at least have the right to require attend- 
ance at morning calisthenics in the execution of its obligation to maintain the 
health of the prisoners of war. 



137 

graph of Article 38 provides that the prisoners of war shall have 
opportunities for these purposes and for being out-of-doors ; and that 
sufficient open spaces shall be provided by the Detaining Power for 
this purpose in all prisoner-of-war camps. 

It will thus be seen that the Detaining Power is obligated to provide 
the prisoners of war with (1) opportunities for physical exercise, 
including sports and games; (2) the equipment necessary for these 
purposes; (3) the open spaces likewise necessary for these purposes; 
and (4) opportunities to be out of doors. 142 During World War II it 
was found that when the Detaining Power made such opportunities 
available to the prisoners of war, it improved not only their health, 
but also their morale. 143 Unfortunately, there are times when it is 
simply beyond the ability of the Detaining Power to provide adequate 
and sufficient space for the purposes of exercise. 144 When this occurs, 
or when the Detaining Power fails to furnish the necessary space for 
its own reasons, the result will frequently be "barbed-wire psychosis," 
a mental condition which can be a greater drain on the resources of 
the Detaining Power than liberal compliance with the foregoing pro- 
visions of the Convention. 145 

6. Morale 

The preceding discussion has been directed primarily toward the 
provisions of the Convention aimed at ensuring the physical well- 
being of the prisoner of war. Now let us direct our attention to a 
number of other areas which are also of vital importance in the 
maintenance of individual esprit and the will to live. 

The importance of keeping a prisoner of war fully occupied, with- 
out time hanging on his hands, cannot be overestimated, both from 
the point of view of the Detaining Power and from the point of view 



142 The comparable articles of the 1929 Convention (Articles 13, fourth para- 
graph, and 17) were lacking in detail and were nonmandatory. The provisions of 
the 1949 Convention in this area are a considerable improvement. (For a further 
discussion of some of the problems connected with physical exercise and organized 
sports, see note 141 supra.) 

143 i ICRC Report 264. 

144 It should be comparatively rare that the Detaining Power could not even 
provide an area sufficient for walking or jogging. 

145 p or an example of complete noncompliance with most of the foregoing pro- 
visions of the Convention concerning life in a prisoner-of-war camp, see Bean, A 
Guest at the Hanoi Hilton, The Retired Officer, July 1973, at 28. Colonel Bean, a 
prisoner of war in North Vietnam for five years and two months, spent the first 
half of that period alone in a cell 7 by 8 feet in size, with no ventilation and very 
little light; was fed "a small loaf of bread and watery soup" twice a day; received 
only 2V2 coffee-size cups of water a day; was provided with a "convenience" con- 
sisting of a bucket in his cell ; and during 25 months was allowed out to "exercise" 
on only 37 occasions (an average of once every 20 days), each time for a period of 
3-5 minutes. See also notes VI-35 and VII-94 infra. 



13$ 

of the prisoner of war himself. Keeping the prisoner of war fully 
occupied solves many disciplinary problems for the Detaining Power 
and, in many cases, it is all that makes life in a prisoner-of-war camp 
supportable for the prisoner of war. The Detaining Power may, 
within the limitations of the Convention, require prisoners of war 
to perform certain types of labor, 146 but this alone is not the full story. 
There are many hours in the day other than those during which the 
prisoner of war will be performing the labor required by the Detain- 
ing Power. Some of these will be occupied in sleeping, eating, bathing, 
doing personal chores, etc. The Convention indirectly attempts to 
make specific provisions for the remaining hours. It is with this sub- 
ject that we will now be concerned. 

a. RELIGIOUS ACTIVITIES 

Like Article 16 of the 1929 Convention, the first paragraph of 
Article 34 of the 1949 Convention provides for complete liberty in 
the exercise of religious duties, subject only to the requirement of 
compliance with the disciplinary routine of the Detaining Power. 147 
New in this area is the absolute requirement of the second paragraph 
of Article 34 that "[a]dequate premises shall be provided where 
religious services may be held." 148 

As in the case of medical personnel, provision is made for the 
retention of chaplains for the purpose of ministering to the prisoners 
of war. 149 While so retained, they have the same status as retained 
medical personnel. 150 With respect to ministers of religion who were 
not engaged in their religious capacity while serving in their armed 
forces, special provision is now made in Article 36, permitting them 
to function as chaplains while in the custody of the Detaining Power 
and providing that they shall receive the same treatment as retained 
chaplains and that they shall not be required to perform any other 



146 See pp. 225-240 infra. 

147 Certainly, no one would contend that religious services could be scheduled so 
as to conflict with morning roll call or to interrupt the workday. 

148 The enumeration in the first paragraph of Article 72 of the items which pris- 
oner of war are allowed to receive through the post includes "articles of a relig- 
ious, educational or recreational character which may meet their needs, . . ." This 
matter will be discussed at more length in connection with the overall problems 
relating to relief packages. See p. 160 infra. 

149 See the discussion of Articles 4C and 33, at pp. 70-74 supra. See also the 
restrictive provision of the last paragraph of Article 33. 

150 Various special agreements entered into during World War II authorized the 
retention of anywhere from one chaplain per thousand prisoners of war (United 
States-Germany) to four chaplains per thousand prisoners of war (Germany- 
South Africa). 1 ICRC Report 202. Article 2(a) of the Model Agreement on this 
subject, drafted by the ICRC pursuant to Resolution 3 of the 1949 Diplomatic 
Conference (1 Final Record 361), calls for the retention of one chaplain per two 
thousand prisoners of war. ICRC, Model Agreement. 



139 

work. 151 Finally, as a third source of spiritual advisers, when neither 
retained nor prisoner-of-war ministers are available, provision is 
made (in Article 37) for the designation — subject to the approval of 
the prisoners of war constituting the religious community, the Detain- 
ing Power, and, where appropriate, the local religious authorities of 
the religion concerned — of a local minister or, where permitted by the 
religion, a qualified layman, to perform the necessary religious func- 
tions for the prisoners of war of that religion. The minister or layman 
so designated is specifically required to comply with all of the regu- 
lations of the Detaining Power with respect to discipline and military 
security. 

Details with regard to the functions to be performed by chaplains 
are contained in Article 35 which, generally, permits them to minister 
to prisoners of war "and to exercise freely their ministry among pris- 
oners of war of the same religion." Special privileges available to 
them include the use of necessary transport for visiting prisoners of 
war outside the camp where the chaplain is himself confined, presum- 
ably where a group of prisoners of war have no other source of 
spiritual guidance; 152 and freedom to correspond, beyond the personal 
quota but subject to normal censorship, with the ecclesiastical author- 
ities of the Detaining Power and with international religious organi- 
zations, on matters relating to his religious duties. 153 

b. INTELLECTUAL, EDUCATIONAL, AND RECREA- 
TIONAL PURSUITS 

Provision having been made for the spiritual needs of the prisoners 
of war, the draftsmen of the 1949 Convention directed their attention 
to other types of activity: the intellectual, educational, and recrea- 
tional. 

Article 17 of the 1929 Convention merely provided that "so far as 
possible" the Detaining Power "shall encourage intellectual diversions 
. . . organized by prisoners of war." It is readily apparent that the 
foregoing provision did not impose any measurable obligation on the 



151 There was no comparable provision in the 1929 Convention. During World 
War II many ministers and priests were found serving in the ranks as ordinary 
soldiers. The United States used them in their religious capacities, but, in most 
respects, continued to consider them to be prisoners of war. Lewis & Mewha 159, 
160; Rich, Brief History 411. 

152 During World War II the allocation of chaplains to the various prisoner-of- 
war installations apparently caused some problems. 1 ICRC Report 274; Mason, 
German Prisoners of War 201. One method adopted in the 1949 Convention for re- 
ducing this problem for the future was to state specifically in Article 35 that they 
were to be "allocated among the various camps cuid labor detachments." (Em- 
phasis added.) 

153 This privilege should be read in conjunction with the first paragraph of 
Article 125, which authorizes the representatives of religious organizations, among 
others, to visit the prisoners of war and to distribute relief supplies. 



140 

Detaining Power. Moreover, it did not specifically preclude the Detain- 
ing Power from subjecting the prisoners of war to political propa- 
ganda and from attempting to convert them to its own ideology. 
During World War II a few Detaining Powers did construe the Con- 
vention provision as prohibiting such action on their part, at least to 
the extent that political propaganda, such as lectures on ideology, 
could not be forced on the prisoners of war through the medium of 
compulsory classes, although they considered that classes could be 
conducted on the basis of voluntary attendance. 154 However, this inter- 
pretation of the Convention provision, which was unquestionably ex- 
tremely liberal, was not uniformly made. 155 Where it was applied, the 
system usually adopted was to permit the prisoners of war to organize 
their own intellectual activities, such as formal study courses, the 
publication of camp newspapers, the establishment and operation of 
camp libraries and reading rooms, etc. ; 156 and to install radio loud- 
speakers, variously located, upon which would be broadcast programs 
selected by the camp authorities. In this latter instance, in order to 
maintain the policy of voluntariness, provision would be made whereby 
prisoners of war who did not desire to hear the broadcast material 
could turn it off. 157 

The Commission of Experts established by the ICRC to draft pro- 
posed revisions to the provisions of the 1929 Convention relating to 
the spiritual and intellectual needs of prisoners of war appreciated 
the necessity to be more specific in regard to the encouragement of 
intellectual, educational, and recreational pursuits by prisoners of 
war and attempted to redraft the Article to attain this objective. 
Conceding that some political propaganda on the part of the Detaining 
Power was inevitable, the Commission approved an ICRC suggestion 
for the inclusion of an additional provision covering the problem of 



154 Thus, as early as March 1943, the decision was made by the United States 
that while there would be no legal objection to making information on American 
history and government, and the workings of democracy, available in prisoner-of- 
war camps, attendance at any lectures, classes, motion pictures, etc., on these sub- 
jects would have to be completely voluntary and that it would be unlawful to com- 
pel such attendance. SPJGW 1943/4248, 29 March 1943; Rich, Brief History, 544; 
Tollefson, Enemy Prisoners of War 67. 

155 The ICRC intervened to induce certain Detaining Powers to refrain from 
carrying on political propaganda among prisoners of war. This was deemed to be 
necessary in the case of the German authorities with Allied prisoners of war and 
in the case of the British authorities with Italian prisoners of war in India. 1 
ICRC Report 251. 

156 pow Circular No. 1, para. 96; Lewis & Mewha 147, 160. By 1944 the pro- 
gram in the United States had grown to such an extent that prisoners of war were 
taking correspondence courses given by American colleges and universities and 
also courses specially prepared for members of the United States armed forces. 
Rich, Brief History 443. 

157 1947 SAIN 13. 



141 

forced versus voluntary attendance at propaganda meetings. 158 Al- 
though the 1949 Geneva Diplomatic Conference did not completely 
agree with the terminology proposed, it did adopt substantially the 
proposal approved by the Commission. While once again stating the 
obligation of the Detaining Power to "encourage" the practice of 
intellectual, educational, and recreational pursuits, the draftsmen at 
the Conference agreed, without any controversy, that the first para- 
graph of Article 38 — which has now become the relevant Article, and 
which again calls upon the Detaining Power to "encourage the prac- 
tice of intellectual, educational, and recreational pursuits" — should 
open with the words "[wlhile respecting the individual preferences of 
every prisoner. . . ." Obviously, this clause was added in order to 
place it beyond dispute that a Detaining Power may not use compul- 
sion on prisoners of war in this area. 159 

At the conclusion of World War II, when prisoner-of-war problems 
were being studied in depth, one commentator, while agreeing that 
prisoners of war should not be involuntarily subjected to political 
propaganda favoring the Detaining Power and detrimental to their 
own country, even had reservations with respect to permitting this 
type of activity on a voluntary basis. He pointed out that while the 
system would work where prisoners of war were receiving a sufficient 
quantity of food, to permit it where inadequate supplies of food were 
available might in effect result in a "no study, no eat" policy, the food 
allowances thus being used as a bribe to encourage, or even compel, 
attendance at propaganda classes and lectures. 160 The validity of his 
argument was fully demonstrated by what transpired in the prisoner- 
of-war camps maintained by the Communists in Korea during the 
1950-53 hostilities in that country. While attendance at political in- 
doctrination sessions in these camps were originally compulsory, 161 in 
time it became voluntary, with the so-called "progressives" — who at- 
tended such sessions regularly — receiving a substantially increased 
food allowance, and the so-called "reactionaries" — those who had 
proven immune to Communist blandishments — frequently receiving 
a food allowance which was far below the minimum subsistence 
level. 162 Nevertheless, it is believed that the policy contained in the 
1949 Convention is a proper one and that the flagrant disregard 
thereof by the Communists in Korea, and elsewhere, does not warrant 



W»2A Final Record 263. 

ion Feilchenfeld, Prisoners of War 45. 

161 Flory, Nouvelle conception 60; U.K., Treatment 4-10; U.S., POW 10-14. 
Nevertheless, the Communists complained bitterly of the voluntary system estab- 
lished in the prisoner-of-war camps by the United States Command. Hermes, Truce 
Tent 237. The fact that they did complain is indicative of the success that the vol- 
untary program was having". 

162 See U.S., POW 10; U.K., Treatment 21-22. 



142 

denigration of the provision, but merely indicates that this is another 
area where, in the application of the provisions of the Convention, it 
is frequently necessary to rely largely on the good will and inherent 
desire to be law-abiding of the respective belligerents — even where 
some of them do not have a very good record of compliance with their 
voluntarily assumed international obligations. 

In addition to their duty to "encourage" the prisoners of war to 
engage in intellectual, educational, and recreational pursuits, the 
Detaining Power also has an obligation under the first paragraph of 
Article 38 to "take the measures necessary to ensure the exercise 
thereof by providing them [the prisoners of war] with adequate 
premises and necessary equipment." 163 Obviously, more than time is 
required if prisoners of war are to be enabled to read, to study, to 
participate in sedentary games, to engage in musical activities, to 
produce entertainment, etc. They need places not subject to the 
vagaries of the weather in which to pursue these activities, and they 
need the items of equipment which are indispensable for many of 
them. The Convention places the basic responsibility for providing 
both premises and equipment directly on the Detaining Power. It 
places upon the Detaining Power a far more specific and measurable 
obligation than that which was contained in the parallel provision of 
the 1929 Convention which, as we have seen, merely obligated the 
Detaining Power to "encourage" these activites "as much as possible." 

Here, once more, the problem arises as to whether the Detaining 
Power may consider the receipt of equipment in these categories (in- 
tellectual, educational, and recreational) in relief parcels or collective 
shipments as relieving it pro tanto from the international obligation 
which it has assumed. 164 There will obviously be considerably less 
excuse for such action by the Detaining Power in these areas than in 
the case of food. In any event, the prohibition against such a practice 
contained in the second paragraph of Article 72 is there stated to be 
applicable to all of the obligations of this nature assumed by the 
Detaining Power as a Party to the Convention. 

c. PHYSICAL EXERCISE AND SPORTS 
A third type of activity which contributes tremendously to the 
morale and well-being of the prisoner of war, and in many instances 
will so contribute to the exclusion of intellectual, and perhaps even 
spiritual, pursuits, is the opportunity for physical activities and organ- 
ized sports and games. Both paragraphs of Article 38 impose new 
obligations on the Detaining Power in this area. As already noted in 
connection with intellectual, educational, and recreational pursuits, the 



16:5 See note 148 supra. Article 80 likewise gives responsibilities in this area to 
the prisoners' representative, See p. 305 infra. 
164 See note 107 supra. 



143 

Detaining Power must now provide adequate premises and the neces- 
sary equipment. This obligation is equally applicable to physical activi- 
ties. And the second paragraph of the Aricle imposes upon the Detain- 
ing Power the affirmative requirements of providing the prisoners of 
war with opportunities for taking physical exercise and for being out- 
of-doors, and of providing sufficient open space in every camp for these 
purposes. Once again, it is no longer left to the Detaining Power itself 
to determine its capabilities in this regard and what it considers to be 
"possible" on its part. All discretion is removed and the definite obli- 
gation is placed upon the Detaining Power to provide the prisoners 
of war with time and space for being out-of-doors, for physical exer- 
cise, and for sports and games. Actually, this will frequently contrib- 
ute so much to the health of the prisoners of war as to substantially 
reduce the requirement for medical attention. 165 

d. CANTEENS 

There is one further subject which contributes materially to the 
morale of the prisoner of war although it does not exactly fall within 
the general category of matters which we have just been discussing. 
This is the camp canteen, the store where the prisoner of war is al- 
lowed to purchase such ordinary items as may be available on the local 
economy, especially tobacco. 166 The existence of the canteen and the 
availability for sale of canteen-type articles has an affirmative effect 
on morale the extent of which is incalculable. 

Provisions for the establishment of canteens in each prisoner-of-war 
camp are contained in Article 28 of the 1949 Geneva Convention. This 
Article represents a considerable elaboration of the predecessor pro- 
vision, Article 12 of the 1929 Convention. For example, while Article 
12 referred only to "food products and ordinary objects," the new 
provision includes "food stuffs, soap and tobacco and ordinary articles 
in daily use." Again, while Article 12 provided that prisoners of war 
would be able to obtain the named items "at the local market price," 
the new Article 28, in the first paragraph, affirmatively states that 
"the tariff [price list] shall never be in excess of local market 



165 This is true only provided that the prisoners of war are receiving a sufficient 
food allowance to enable them to participate in physical exercise and sports. In- 
adequate diet reduces both the will and the power to indulge in activities which 
necessitate physical exertion ; and the resulting reduced activity, while perhaps 
somewhat reducing the need for food, also reduces the ability of the body to fight 
infection. 

199 See note 172 infra. The canteens may typically also stock such other items as 
toilet articles; candy, crackers, soft drinks, fruit, and other food items; and, in 
some cases, even light beer (or wine), McKnight, POW Employment 52; Mason, 
German Prisoners of War 208. The inventory will, as noted below, depend entirely 
upon the state of the local economv. 



144 

prices." 167 And, while Article 12 provided that profits from the can- 
teen "shall be used for the benefit of prisoners," the second paragraph 
of Article 28 not only so provides, but further specifies that "a special 
fund shall be created for this purpose," 168 and that the prisoners' 
representative 169 shall have a right to collaborate in the management 
of this fund (as well as in the management of the canteen itself) ; and 
the last paragraph of Article 28 states that when a camp is closed, 
the balance of any such fund shall be turned over to an international 
welfare organization (presumably one such as the ICRC, and not a 
national Red Cross Society) to be used for the benefit of other pris- 
oners of war of the same nationality as those whose purchases have 
created the fund. 170 

Of course, the stock available at prisoner-of-war canteens will de- 
pend largely upon the availability of canteen-type items in the terri- 
tory of the Detaining Power. If there is, for example, a shortage of 
tobacco or soap or candy in the territory of the Detaining Power, there 
will likewise be a shortage of this item in the prisoner-of-war can- 
teens. As in the case of food shortages, to expect any Detaining Power 
to maintain prisoners of war at a higher standard than that of its 
own civilian population is an excess of naivete. Unfortunately, the 
Convention does not contain any provision covering this situation. Pre- 
sumably, if any such item is rationed to the civilian population, pris- 
oners of war should, by analogy to other Convention provisions, receive 
a comparable ration. The unfortunate omission of such a provision in 



167 The author was told by a number of Pakistanis who had been held as pris- 
oners of war in India that the Indian Government had given concessions to Indian 
entrepreneurs to operate the canteens on a profit-making basis and that the can- 
teen prices were frequently four or five times that of the local economy. 

168 During World War II the German Government stated that "prisoner of war 
canteens are establishments of the Reich and that their operations (resources) 
represent economic income and expense of the Reich." German Regulations, No. 41, 
para. 769. While the exact meaning of this statement is somewhat obscure, the sec- 
tion heading is quite specific. "Tax on turnover of prisoner of war canteens." The 
United States, on the other hand, determined that as Federal instrumentalities, 
prisoner-of-war canteens were not subject to State taxes, such as sales taxes, and 
that their profits were to be used for the benefit of the prisoners of war. SPJGT 
1943/10442, 12 July 1943; Rich, Brief History 415. 

169 Concerning the prisoners' representative, see pp. 293-307 infra. Under the 
third paragraph of Article 62 the pay of the prisoners' representative, and of his 
assistants, is chargeable against canteen profits. 

170 The United States went even further and provided that in general when pris- 
oners of war were transferred from one camp to another, "a proportionate share 
of the value of canteen stock and the Prisoner of War Fund will be transferred" 
with them. POW Circular No. 1, para. 75. For details of the directive concerning 
the administration of the camp canteens by the United States during World War 
II, see ibid., para. 71 et seq.; and Rich, Brief History 413. The last paragraph of 
Article 28 further provides that in the event of a "general repatriation" (cessation 
of hostilities?), accumulated canteen profits will be kept by the Detaining Power 
unless the Powers concerned otherwise agree. 



145 

the Convention is one which, it is to be feared, will offer an escape 
hatch to the Detaining Power so inclined. 171 To some prisoners of war, 
the failure of the Detaining Power to make tobacco available through 
the canteens will be as serious an omission as its failure to provide an 
adequate food allowance. 172 

7. Correspondence 

The privilege of communicating with, and receiving communications 
from, his family is probably the greatest single factor in the mainte- 
nance of prisoner-of-war morale. 173 The recognition of its importance 
is illustrated by the fact that no less than 11 articles of the Convention 
are in some way concerned with this problem. 174 



171 This problem was discussed briefly by Committee II (Prisoners of War) at 
the 1949 Diplomatic Conference. The suggestion was there made that the present 
Article 28 should include a provision for special agreements under which the Power 
of Origin might supply the canteens if the Detaining Power was unable to do so. 
This suggestion was not favorably considered for two reasons: first, that the first 
paragraph of Article 6 already provided generally for special agreements between 
belligerents; and, second, that such a provision would encourage some Detaining 
Powers to refrain from stocking canteens. 2A Final Record 258-59. The first reason 
did not prevent the draftsmen from including in the same Article a provision which 
contemplates the possibility of a special agreement concerning the ultimate dis- 
position of canteen profits. While there is considerable merit to the second reason, 
if shortages occur — as they inevitably will — there should be some established 
method, other than relief packages, for remedying the situation. 

112 The importance of tobacco to the prisoner of war is illustrated by its inclu- 
sion in the few items specifically listed in the first paragraph of Article 28, as well 
as by the provision in the third paragraph of Article 26 requiring the Detaining 
Power to permit the use of tobacco by prisoners of war. Speaking of the British 
and Australian prisoners of war in Singapore early in 1942, one author says that 
"after food, tobacco was the prisoners' main preoccupation." Caffrey, Out in the 
Midday Sun 226-27. 

173 During World War II the Central Prisoners of War Agency (concerning this 
Agency, see pp. 154-158 infra) received and forwarded almost 20 million commu- 
nications from and to prisoners of war and civilian internees; and it estimated 
that this was only a very small proportion of the total of such mail. 2 ICRC 
Report 57. 

17 4 Articles 48, 69, 70, 71, 74, 75, 76, 77, 78, 98, and 108. Annexes IVB and IVC 
are also relevant, as are Articles 72 and 73. One well-informed writer has said: 
"One of the most bitter features of captivity is the ignorance of the prisoners [of 
war] of conditions and news in general of home." Dillon, Genesis 55. The reverse 
of this situation, the lack of the receipt of news of the prisoner of war by his fam- 
ily, is an equally bitter feature of captivity. During the hostilities in Vietnam the 
North Vietnamese took advantage of the prisoner-of-war hunger for news from 
home, and the family hunger for news of and from the prisoner of war, to use 
correspondence as a method of obtaining favorable propaganda. After a long period 
during which only a sporadic and extremely limited correspondence was permitted 
(see note 183 infra) , arrangements were made for an antiwar group in the United 
States to act as North Vietnam's postal agent with respect to prisoner-of-war mail. 
1971 Hearings 237-38; Sullivan, Prisoners of War in Indochina 305-06. 



146 

Pursuing the subject chronologically, Article 70 provides that as 
soon as possible and, in any case, not later than one week after arrival 
at a transit or prisoner-of-war camp, every newly captured individual 
must be given the opportunity to send a "capture card" to his family in 
which he may inform them of the fact of his capture, his address, and 
his state of health. At the same time he may send a somewhat similar 
card to the Central Prisoners of War Agency, 175 thus making doubly 
sure that the information reaches his family. 176 The Detaining Power 
is specifically admonished to expedite the forwarding of these capture 
cards and is prohibited from delaying their transmission. Provision is 
also made for the sending of this type of card whenever the prisoner 
of war has a change of address because he is hospitalized or trans- 
ferred to another prisoner-of-war camp. 177 The first paragraph of 
Article 48 specifies that in this latter event the Detaining Power has 
an obligation to advise the prisoner of war of his new postal address 
in time for him to send the card to his next of kin. 178 

While the dispatch of the capture card is of extreme importance 
both to the prisoner of war and to his family, of at least equal im- 
portance to them is the right to communicate with some degree of 
regularity over the period during which the prisoner-of-war status 



175 A capture card "similar, if possible" to Annex IVB to the Convention is to be 
provided by the Detaining Power for use by the prisoner of war in notifying the 
Central Prisoners of War Agency of his capture. As no form is provided by the 
Convention for use by the prisoner of war in notifying his family of his new status, 
the suggestion has been made that the capture card sent to the family could con- 
sist of the back (message side) of Annex IVB and the front (address side) of 
Annex IVC 1 (the Correspondence Card). Pictet, Commentary 342 n.l. However, 
this would involve unnecessary duplication of information. All that is really needed 
is a card identical to Annex IVB with a blank address side on which the prisoner 
of war could write the name and address of the member of his family to whom the 
information is to be sent. 

176 The second paragraph of Article 36 of the 1929 Convention contained a very 
similar provision with respect to the notification of the family. Although it con- 
tained no provision for a capture card to be sent to the Central Prisoners of War 
Agency, during World War II the ICRC succeeded in persuading a number of 
belligerents to adopt such a procedure, particularly because the capture cards 
usually reached the Central Agency in Geneva long before the lists officially sub- 
mitted by the Detaining Power pursuant to what is now Article 122. 1946 Pre- 
liminary Conference 78-79. This procedure also made the information centrally 
available when a displaced family failed to receive the card addressed to it by the 
prisoner of war. 

177 Article 70 also provides for the dispatch of such a card "in cases of sickness." 
The meaning of this provision is unclear. Certainly, there was no intention to 
authorize the sending of such a card every time that a prisoner of war was on sick 
call because of a cold or some other equally routine ailment. Pictet, Commentary 
341. 

178 The third paragraph of Article 48 imposes upon the Detaining Power the cor- 
relative obligation of promptly forwarding to the prisoner of war at his new camp 
all mail and parcels received at the former camp after his departure therefrom. 
See p. 193 infra. 



147 

extends, which may be a matter of years. The subject is covered, at 
considerable length, in Article 71 of the Convention which opens with 
the flat statement that "[p]risoners of war shall be allowed to send 
and receive letters and cards." This is the blanket provision and it is 
followed by a number of specific provisions, some of which restrict 
the authority of the Detaining Power, and some of which provide the 
Detaining Power with a limited leeway to impose some restrictions in 
this area. 

The tenor of the Convention is that the Detaining Power will permit 
prisoners of war to write and send an unlimited number of letters and 
cards. However, it is appreciated that the transportation of a massive 
bulk of mail and the censorship of correspondence which will probably 
be written in a language foreign to that of the Detaining Power may 
create problems requiring the imposition of some numerical limita- 
tions. The Detaining Power is therefore authorized, when it is deemed 
necessary, to limit each prisoner of war to not less than two letters 
and four cards per month. 179 While Article 71 authorizes the monthly 
minimum, in exceptional cases, to be reduced below the foregoing 
figures, this may only be done when the Protecting Power (not the 
Detaining Power) concludes that it would be in the overall general 
interests of the prisoners of war to impose such a reduction because 
of the delay caused by the Detaining Power's inability to provide a 
sufficient number of translators to accomplish the necessary censor- 
ship without inordinate delay. 180 

One additional authorization for interference by the belligerent Pow- 
ers with prisoner-of-war mail is contained in the third paragraph of 
Article 76, which permits a complete ban to be imposed, "either for 
military or political reasons," but with the admonition that such ban 
"shall be only temporary and its duration shall be as short as possible." 
Unfortunately, neither the drafting history of this provision (nor of 
its counterpart, the second paragraph of Article 40 of the 1929 Con- 



17!> The first paragraph of Article 36 of the 1929 Convention permitted Detaining 
Powers to establish numerical limits but did not provide for any specific monthly 
minimum. During World War II the United States at first permitted each prisoner 
of war to write and mail four letters and four cards per month. As the number of 
prisoners of war increased, the burgeoning censorship problem necessitated the 
reduction of this allowance to two letters and four cards per month. Tollefson, 
Enemy Prisoners of War 66-67. These same numbers were adopted by most of the 
belligerents. 1 ICRC Report 349. They have now been incorporated into the first 
paragraph of Article 71 of the Convention. (It should be noted that under the 
third paragraph of Article 78, letters of complaint addressed to the Detaining 
Power, the prisoners' representative, or the Protecting Power, are excluded from 
the count.) 

180 The sentence of the first paragraph of Article 71 which immediately follows 
the provision referred to in the text concerns the other aspects of the problem — 
mail to the prisoners of war. Here the limitations may be imposed only by the 
Power of Origin, "possibly at the request of the Detaining Power." 



148 

vention), nor any other provision of the Convention, discloses the in- 
tent and purpose of this authorization. It may be that it was included 
in order to enable the Detaining Power to put a blanket prohibition on 
prisoner-of-war correspondence prior to a major military operation 
which might otherwise be compromised by the many small bits of 
information which could be gleaned from such correspondence to form 
an overall recognizable pattern. However, the fact of the ban itself 
would probably be equally, or even more, revealing to the enemy in- 
telligence service. So-called "disinformation" would probably be more 
effective than the total ban. And no justifiable "political reasons" can 
be envisaged for such a ban. 181 All in all, this provision appears to be 
an unwarranted and unnecessary one which can be used by an un- 
scrupulous Detaining Power, at least for limited periods of time, to 
justify legally what is really a premeditated violation of major pro- 
visions of the Convention. 

Detaining Powers have, on more than one occasion, used the denial 
of mail privileges for disciplinary purposes: either to punish for 
alleged misconduct, or to compel or reward certain desired conduct. 182 
In the 1949 Convention every effort has been made to remove the mail 
completely from the disciplinary area. Thus: (a) the last clause of 
the first paragraph of Article 71 states that letters and cards "may 
not be delayed or retained for disciplinary reasons"; (b) the third 
paragraph of Article 87 prohibits collective punishment for the acts 
of individuals; 183 (c) the second paragraph of Article 89 provides that 



181 Unlike the limitations on mail contained in the first paragraph of Article 71, 
which require the concurrence of the Protecting Power or of the Power of Origin 
before they may be imposed, the emergency limitations authorized by the third 
paragraph of Article 76 may apparently be imposed unilaterally by the Detaining 
Power. 

™ 2 I.M.T.F.E. 1135; U.K., Treatment 21; Miller, The Law of War 245. Writing 
of the procedures with respect to mail followed by the Chinese in Korea, a psy- 
chiatrist said : "Loyalties to home and country were undermined by the systematic 
manipulation of mail. Usually only mail which carried bad news was delivered to 
a man. If he received no mail at all, it was pointed out to him that his loved ones 
must have abandoned him." Schein, Patterns, 257-58. 

183 Maughan, Tobruk 796. While it denied the applicability of the 1949 Conven- 
tion to the American prisoners of war shot down over its territory (see note 1-68 
supra), North Vietnam made the following statement in a letter to the ICRC dated 
31 August 1965. 

Authorization has been granted [to the captured American airmen] to corre- 
spond with their families. However, the regulations concerning mail with the 
exterior having been recently infringed, the competent authorities of the 
Democratic Republic of Vietnam have decided temporarily to suspend this cor- 
respondence. In future, if those concerned demonstrate their willingness to 
observe the regulations in force in the Democratic Republic of Vietnam, the 
competent authorities could reconsider the question with a view to finding an 
appropriate solution. 
3 I.R.R.C. 528 (1965). Information concerning the nature of the "regulations" and 



149 

disciplinary punishment may include the discontinuance of only those 
privileges which have been granted by the Detaining Power ''over and 
above" the minimum requirements stipulated in the Convention; (d) 
the first paragraph of Article 98 reserves to prisoners of war under- 
ging disciplinary punishment all of the benefits of the Convention; 
(e) the last paragraph of Article 98 specifies that prisoners of war 
undergoing disciplinary punishment shall have permission "to send and 
receive letters" ; and (f ) the third paragraph of Article 108 provides 
that prisoners of war serving sentences imposed after trial "shall be 
entitled to receive and dispatch correspondence." 184 

A problem with respect to correspondence may arise by reason of 
the fact that the languages of prisoners of war usually differ from 
that of the Detaining Power. The third paragraph of Article 71 of 
the Convention, like Article 36 of its 1929 predecessor, provides that, 
as a general rule, prisoners of war shall use their "native language" 
in their correspondence but that the Detaining Power may allow them 
to use other languages. 185 The italicized clause was undoubtedly in- 
cluded for the protection of the prisoners of war, as a ban on any 
attempt to compel them to correspond in a language other than their 
own. 186 Unfortunately, it has apparently also been construed as mean- 
ing that, while generally the Detaining Power will permit correspond- 
ence to be conducted in the native language of the prisoner of war, it 
may, in exceptional cases, dictate otherwise. Thus, during World War 
II, certain prisoners of war held by the Germans were required to 
conduct their correspondence in German, a language with which they 
were totally unfamiliar as were, presumably, their correspondents at 
home. 187 Of course, this was the same as prohibiting them from send- 
ing any mail While such action on the part of the Detaining Power 
may not always be totally unwarranted, as it may. have available for 



how and by whom they had been violated was not disclosed. Unless it was found 
that every prisoner of war had violated the "regulations," the North Vietnamese 
action was vicarious punishment in violation of the prohibition on collective punish- 
ment contained in the third paragraph of Article 87. 

184 It should also be noted that the first paragraph of Article 87 prohibits the 
imposition upon prisoners of war of any punishment not imposed upon members of 
the armed forces of the Detaining Power who have committed the same act. Most 
armed forces permit their military prisoners to send and receive mail. 

185 Presumably, the language of the Power of Origin will be the "native lan- 
guage" of the prisoner of war. However, this it not always true ; and the privilege 
of using a different language will sometimes be sought because of unusual circum- 
stances such as, for example, the fact that the prisoner of war was serving in the 
armed forces of a country other than his own (see note 204 infra) , or the fact that 
the parents of the prisoner of war did not accompany him when he immigrated, or 
that while they have immigrated to the Power of Origin of their prisoner-of-war 
son, they are still not literate in the language of their adopted land. 

186 This is the position taken by the ICRC which does not appear to accept the 
possibility of an alternative interpretation. Pictet, Commentary 350. 

187 Tchirkovitch, Nouvelles conventions 105. 



150 

censorship purposes practically no personnel familiar with a particular 
language which is in limited use, neverthless, the result can obviously 
be morale-shattering to the prisoners of war affected by such a ruling. 
It is to be regretted that despite the known existence of this problem 
under the provisions of the 1929 Convention, no effort was made to 
solve it in the 1949 Convention, which is identical except for minor 
drafting changes. 188 

It will have become obvious that differences in language, with the 
consequent difficulties encountered in censoring, constitute one of the 
major problems with respect to prisoner-of-war correspondence. As a 
further limitation on the Detaining Power in this area, the first para- 
graph of Article 76 requires that censorship be accomplished as rap- 
idly as possible, 189 be done only by the dispatching and the receiving 
States, 190 and only once by each. 

As one means of solving the problem of censorship of prisoner-of- 
war mail during World War II, the belligerents, as we have seen, found 
it necessary to place a numerical ceiling on the number of items a 
prisoner of war would be permitted to dispatch each month, a ceiling 
which has been included as a floor in the 1949 Convention. A number 
of belligerents in World War II went a step further and only permitted 
the use of letter forms with a limited number of words, or even with 
stereotyped messages. 191 This procedure is indirectly prohibited by 
the first paragraph of Article 71, which requires that the cards and 
letters furnished to prisoners of war for their use conform "as closely 
as possible" to the forms annexed to the Convention. 192 These forms 
provide a blank space for the message and carry the remark that the 
space "can contain about 250 words which the prisoner is free to 
write." 193 



188 It should be noted that the German military authorities did attempt to solve 
this problem by issuing an order under which letters written in a number of lan- 
guages little known in Germany (Urdu, Kurdish, Georgian, etc.) could be sent to 
Berlin for censoring. German Regulations, No. 25, para. 341. At the 1949 Diplo- 
matic Conference the Indian delegation did make a proposal in this connection but 
it was not pressed. 2A Final Record 288. 

189 Obviously, this is a provision which lends itself to subjective interpretation. 

100 This would appear to be intended to preclude censorship by another belliger- 
ent should the prisoner-of-war mail pass through its territory while en route to its 
ultimate destination. 

101 1 ICRC Report 348. 

192 See Annexes IVC 1 and 2, respectively. 

193 In the discussion of this matter in Pictet, Commentary 346, the statement is 
made, with respect to the model cards and letters, that it is "to be hoped that the 
Detaining Powers will adopt them, as recommended by the present provision." This 
is one of the few instances in which the present author's interpretation of a pro- 
vision of the 1949 Convention is more liberal than that of the ICRC. " [Conform- 
ing as closely as possible to the models annexed to the present Convention," the 
language of the first paragraph of Article 71, does not appear to be a simple rec- 
ommendation. It is a requirement which can only be the subject of variation if the 



151 

Several other aspects of the prisoner-of-war mail problem are de- 
serving of mention. Thus, prisoner-of-war mail has long been exempt 
from postage requirements and continues so to be. 194 This provision 
for the postage-free carriage of prisoner-of-war mail applies not only 
to the country where the mail originates (the Detaining Power) and 
for which it is destined (usually, but not necessarily, the Power of 
Origin) , but also to all intermediate countries (which may be belliger- 
ents or neutrals). 195 

Second, in respect of the anguish caused by lack of news, the provi- 
sions of the 1949 Convention amplify the cognate provisions of the 
1929 Convention concerning the use of telegrams. 196 The second para- 
graph of Article 71 specifies that prisoners of war (a) "who have 
been without news for a long period" ; 197 or (b) who are unable to 
receive or send news by ordinary postal routes; or (c) who are at a 
great distance from their homes, may send telegrams, the cost thereof 
to be met by the prisoner of war concerned either by payment in cash 



Detaining Power is able to show good cause for its action. Both the language and 
the intent of this provision differ markedly from the "similar, if possible," phrase- 
ology of Article 70. (See note 175 supra.) 

194 The first paragraph of Article 16, 1907 Hague Regulations; the first para- 
graph of Article 38, 1929 Geneva Convention; the second paragraph of Article 74, 
1949 Geneva Convention. The current provision on free postage is implemented by 
Article 16(1) of the Rules applicable in common throughout the international 
postal service, Part I of the 1974 Universal Postal Convention. 

195 i n view of the free-postage provision of Article 16(1) of the Rules applicable 
throughout the international postal service attached to the 1974 Universal Postal 
Convention, it appears that States which are Parties to that Convention, but not 
to the 1949 Geneva Convention, would still have a treaty obligation to permit the 
free passage of prisoner-of-war mail from, through, or to, their national territory. 
Moreover, the provisions of the Universal Postal Convention Common Rules are 
specifically extended to include prisoners of war interned in a neutral country. 

196 International Telecommunications Convention and Article 4 of the Annex to 
the Telegraph Regulations are concerned with prisoner of war telegrams. Para. 4 
of Recommendation F.l of the International Telegraph and Telephone Consultative 
Committee Greenbook provides for a 75 percent reduction in the charge to pris- 
oners of war for telegraphic services. Despite the wide use of wireless telegraphy 
for the transmission of messages prior to the 1949 Diplomatic Conference, the 
word "telegrams" was retained in the Convention. It is assumed that, nevertheless, 
if wireless telegraphy facilities are available, the Detaining Power will permit 
their use, under appropriate safeguards, in meeting its obligations under the 
second paragraph of Article 71. It has even been suggested that when neutral 
representatives are permanently stationed in a prisoner-of-war camp, they might 
be delegated the function of transmitting these messages (perhaps with their own 
transmitting set) . Feilchenfeld, Prisoners of War 32. 

107 There is no attempt to define the term "a long period." During World War 
II three months was usually the period required. Hoole, And Still Wc Conquer 51. 
Another method made available for the use of those without news for three months 
was the so-called "Express Messages," really a short airmail message sent via the 
Central Agency. 2 ICRC Report 62-63; POW Circular No. 1, para. 145. 



152 

or by being charged to his prisoner-of-war account. 198 Because this 
cost was often found to be beyond the resources of prisoners of war 
during World War II, the 1949 Diplomatic Conference adopted a 
Resolution in which it requested the ICRC to prepare a series of speci- 
men messages covering certain appropriate subjects ("personal health, 
health of relatives at home, schooling, finance, etc."). 199 The ICRC has 
complied with the operative provision of the Resolution, a report with 
respect thereto having been submitted to the 1969 International Con- 
ference of the Red Cross. 200 A series of specimen messages is therefore 
available to any Detaining Powers which may agree to permit their use 
by prisoners of war. Furthermore, the concluding paragraph of Ar- 
ticle 74 calls upon all Parties to the Convention to reduce the charge 
for telegrams sent by or to prisoners of war. 

Third, while a prisoner of war is denied his freedom for military 
reasons, it is not a dishonorable state and there is no military need 
to deny him the opportunity to transmit to his family documents, such 
as wills, powers of attorney, etc., of which they may have need. 201 This 
was allowed during World War II, 202 and the first paragraph of Article 
77 of the 1949 Convention continues the practice in somewhat more 
specific language than was contained in the first paragraph of Article 
41 of the 1929 Convention. 203 

Fourth, while there is a tendency to consider the problem of prison- 
er-of-war mail as one involving solely the transmittal of mail both 
ways between the prisoner-of-war camp and the territory of the Power 
of Origin, this is not necessarily so. For example, the family of the 
prisoner of war with whom he wishes to correspond may live in a third 
country ; 204 or he may have close relatives in another prisoner-of-war 



198 There is a further provision in the second paragraph of Article 71 making 
the use of telegrams available "in cases of urgency." This was likewise the practice 
of some belligerents during World War II. Ibid., para. 142. 

199 Resolution 9, 1 Final Record 362. 

- 00 ICRC, Proposed System of Standard Telegram Messages to and from Pris- 
oners of War. 

201 The third paragraph of Article 14 guarantees the retention of "full civil 
capacity." See the discussion of this subject at pp. 180-187 infra. 

202 See 2 ICRC Report 75-76. 

203 The first paragraph of Article 120 contains a special provision for the trans- 
mittal of a will to the Protecting Power, with a certified copy going to the Central 
Agency. 

- 04 There has scarcely been a war fought during this century in which citizens 
of neutral States did not volunteer for service in the armed forces of at least one 
of the belligerents. Americans fought in the British and French armed forces dur- 
ing the 1914-17 period of World War I; Swedes fought in the Finnish armed forces 
during the 1939 Finnish-Russian war; Americans fought in the British and Cana- 
dian armed forces during the 1939-41 period of World War II; etc., etc. 



153 

camp. 205 If a third country — neutral or belligerent — which is a Party 
to the Convention is involved, it is obligated to take the steps necessary 
to effectuate the relevant provisions with respect to prisoner-of-war 
correspondence discussed above. 

There are a number of more general provisions of the Convention 
dealing with the mail which also require at least a passing mention. 
Thus, as soon as a belligerent becomes a Detaining Power (by virtue 
of having taken members of the enemy armed forces into custody as 
prisoners of war), it has a duty to inform the prisoners of war and 
their Power of Origin, through the Protecting Power, of the proce- 
dures which it has adopted in order to implement the various provi- 
sions of the Convention which are concerned with prisoner-of-war 
mail (Article 69) . Sacks containing prison-of-war mail must be secure- 
ly sealed, labeled as such, and properly addressed (Article 71, fourth 
paragraph) , and they must be shipped by the most expeditious method 
available to the Detaining Power (Article 71, first paragraph). And 
in the event that conditions prevent a belligerent from fulfilling its 
obligations to provide the necessary transport for prisoner-of-war 
mail, provision is made for this function to be performed by a neutral 
agency such as the Protecting Power, the ICRC, or some other organi- 
zation approved by the belligerents (Article 75). 

The many individuals who participated in the drafting of what 
eventually became the 1949 Convention were well advised to give the 
amount of attention which they did to the all-important subject of 
prisoner-of-war mail. Unfortunately, the policies adopted by the Jap- 
anese during World War II, by the North Koreans and the Chinese 
during the hostilities in Korea, and by the North Vietnamese during 
the hostilities in Vietnam were a far cry from the policies in this 
regard expressed in the provisions of the 1929 and 1949 Conventions. 
And when belligerents use this significant prisoner-of-war right to 
send and receive mail as a means of propaganda, as a means of coerc- 
ing prisoners of war — as occurred in the latter two conflicts — much 
of the fabric of the Convention disintegrates. 

8. Official Information concerning Prisoners of War 

We have seen some of the efforts which were expended in order to 
ensure that the prisoner of war would be able to advise the members 
of his family of the fact of his capture, to keep them informed of his 
condition, and to receive news of them. But the efforts in this direc- 
tion did not stop there. Based upon experiences of history, a number 
of other institutions were included among the provisions of the 1949 
Convention and a number of other obligations were imposed upon 
Parties to an international armed conflict. 



205 This apparently occurred frequently enough during World War II to cause 
the German military authorities to issue a regulation specifically authorizing cor- 
respondence in such cases. German Regulations, No. 5, para. 10. 



154 

Article 14 of the 1899 Hague Regulations had provided for the 
establishment of a Bureau of Information relative to prisoners of war 
in each of the belligerent States (and in any neutral State in the terri- 
tory of which there were members of the armed forces of a belligerent) . 
Each such Bureau was intended to provide what would now be called 
a "central data bank" for all information concerning prisoners of war 
held by that Detaining Power, so that any inquiry concerning an indi- 
vidual prisoner of war could be quickly answered. Such Bureaux were 
established during the Russo-Japanese War (1904-05) . 206 Also, during 
that conflict, France, the Protecting Power for Russia, requested the 
Japanese Government to provide it, on a regular basis, with lists of 
Russian prisoners of war. This was done on a reciprocity basis so that, 
for the first time, official lists of prisoners of war were exchanged by 
the opposing belligerents through the medium of the Protecting Pow- 
er. 207 Then, during the Balkan War (1912-13) the ICRC tried out the 
idea, which was really only fully implemented during World War I, 
of a central bureau in neutral territory which would receive and dis- 
seminate information on prisoners of war from all belligerents. 208 This 
bureau was subsequently institutionalized in Article 79 of the 1929 
Convention and then in Article 123 of the 1949 Convention. 

Thus, through a process of evolution, there had come into being a 
"Central Prisoners of War Information Agency"; 209 national "Pris- 
oners of War Information Bureaux"; 210 and an obligation on each 
belligerent to furnish its adversary promptly with certain specified 
detailed information concerning every prisoner of war taken into cus- 
tody by it. With some exceptions, 211 these institutions had functioned 
fairly successfully during World War II, with the result that the 
changes made with respect to them in the 1949 Convention were mini- 
mal and, for the most part, were concerned with amplification rather 
than with substance. 

Once again national Information Bureaux are to be established in the 
territory of each belligerent State (and of each neutral or nonbelliger- 



206 Takahashi, Russo-Japanese War 115. 

207 Franklin, Protection 77-78. Despite the adoption of this obviously humani- 
tarian device, Article 14 of the 1907 Hague Regulations merely added the require- 
ment that the data collected by the national Bureaux would be sent to the Power 
of Origin "after the conclusion of peace." 

208 Charpentier, 1929 Convention 146; 2 ICRC Report 5-6. The latter publica- 
tion indicates that as early as the Franco-Prussian War (1870-71) the ICRC had 
opened an unofficial prisoner-of-war information bureau at Basle. 

209 It is generally known simply as the "Central Agency." For a review of the 
activities of the World War II Central Agency, see 2 ICRC Report, passim. 

210 They are generally known simply as "Information Bureaux." The United 
States has elected to call its Information Bureau the "United States Prisoner of 
War Information Center" (USPWIC). U.S. Army Regs. 633-50, para. 5. 

211 Concerning the Soviet Union's negative attitude in this regard, see ICRC 
Report 253-55. 



155 

ent State which is involved with prisoners of war) immediately upon 
the outbreak of hostilities; 212 and each such State is specifically re- 
quired to provide its Bureau with adequate space, equipment, and 
staff. 213 Moreover, it is incumbent upon each State to furnish to its 
Information Bureau "within the shortest possible period" all of the 
specified identification material concerning every individual in its 
custody whose status brings him within one of the various categories 
listed in Article 4 of the Convention. 214 However, this creates a prob- 
lem. The first paragraph of Article 17, the 1949 Convention's version 
of the old "name, rank, and serial number," has added only the date 
of birth to the information which a prisoner of war is bound to give 
the Detaining Power. 215 The fourth paragraph of Article 122 requires 
the Detaining Power, "[s]ubject to the provisions of Article 17," to 
furnish its Information Bureau not only the foregoing data, but also 
with the "place ... of birth, . . . first name of the father and maiden 
name of the mother, name and address of persons to be informed. . . ." 
Just how the Detaining Power is to obtain this information is not 
explained — and certainly no Detaining Power could be held to be in 
default if a prisoner of war, exercising his rights under the first para- 
graph of Article 17 refused to furnish these items of personal identifi- 
fication 216 and the Detaining Power was therefore unable to provide 
all of the information required by the fourth paragraph of Article 
122 to its Information Bureau. 



212 The first paragraph of Article 122, which provides for the establishment of 
the Information Bureaux upon the outbreak of hostilities, as did Article 77 of the 
1929 Convention, now also requires their establishment "in all cases of occupation." 

213 The first paragraph of Article 122 also provides that prisoners of war may 
be employed in the Bureaux, subject to the provisions regarding the employment 
of prisoners of war contained in Articles 49-57, inclusive, of the Convention. {See 
note 111-55 infra) . 

214 Article 122, second paragraph. For a discussion of the categories listed in 
Article 4, see pp. 34-84 supra. 

215 The Identity Card referred to in Article 4A(4), the model for which is re- 
produced in Annex IVA of the Convention, includes information as to the place 
of birth and religion. The Capture Card (Annex IVB to the Convention) and 
the Correspondence Card and Letter (Annex IVC 1 and 2 to the Convention) also 
call for identifying information beyond that required to be given by the first para- 
graph of Article 17. 

216 In its Information Note No. 4, at 15, the ICRC stated that while the prisoner 
of war could refuse to furnish any information beyond that required by the first 
paragraph of Article 17, "it will be to his advantage to give the officials of the 
detaining Power who question him all the information provided for in Article 122." 
(Transl. mine.) Sec. V of the U.S. Code of Conduct forbids members of its armed 
forces to give any information beyond that required by the first paragraph of 
Article 17. This, like several other provisions of that Code of Conduct, is completely 
unrealistic. Technically, every captured member of the armed forces of the United 
States will violate this section of the Code of Conduct when he completes a Capture 
Card or writes a Correspondence Card. See the preceding note. 



156 

With the information now in its possession, the Information Bureau 
should, in any event, have adequate identification for every prisoner of 
war. The requirement is then imposed upon the appropriate other 
agencies of the Detaining Power to furnish to its Information Bureau 
any and all data with respect to subsequent developments concerning 
each prisoner of war such as "transfers [between prisoner-of-war 
camps], releases, repatriations, escapes, admissions to hospital, and 
deaths" ; 217 and, with respect to a seriously ill or seriously wounded 
prisoner of war, the obligation is imposed of furnishing the Informa- 
tion Bureau with information regarding his state of health "regularly, 
every week if possible." 218 

Having thus accumulated complete and reasonably up-to-date per- 
sonal information with respect to each and every prisoner of war in 
the custody of the Detaining Power, 219 the Information Bureau is 
required, using "the most rapid means" available, to forward this 
information to the Protecting Power representing the Power of Origin 
of the prisoner of war and to the Central Agency. 220 It is through this 
procedure that the basic list of captured personnel should reach the 
Power of Origin within a comparatively short period of time. It is the 
compilation made from these lists that establishes the overall accounta- 
bility of the Detaining Power for enemy personnel at one point in time 
admittedly in its custody. 221 



217 Article 122, fifth paragraph. 

218 Article 122, sixth paragraph. The Finnish representative at the 1949 Diplo- 
matic Conference suggested the deletion of the clause "every week if possible" as 
being too burdensome a requirement. His suggestion was rejected. 2A Final Record 
378. 

219 The records containing this information with respect to each prisoner of war 
must be maintained even for prisoners of war who have died in that status as, 
under the seventh paragraph of Article 122, the Information Bureau must be in a 
position to answer inquiries concerning deceased prisoners of war. See Roxburgh, 
The Prisoner of War Information Bureau 25. 

220 Article 122, third paragraph. The next paragraph of Article 122 states that 
the receipt of the information by the Information Bureau "shall make it possible 
to advise the next of kin concerned"; and the seventh paragraph of Article 122 
makes the Information Bureau responsible for answering inquiries concerning 
prisoners of war. However, these provisions do not mean that anyone may send an 
inquiry to, and expect an answer from, the Information Bureau. While the Final 
Record is silent on the question, it appears that the Information Bureau will prob- 
ably transmit information to, and answer inquiries from, official sources (the Pro- 
tecting Power and the Central Agency) only. (This refers to inquiries concerning 
enemy prisoners of war. Of course, there is nothing to prevent a belligerent Power 
from using its Information Bureau as the center of information concerning its own 
personnel in enemy hands and, if it does so, the answering of inquiries concerning 
them would be subject to any ground rules that the Power desired to impose.) 

221 The Communist countries have, when the occasion arose, uniformly refused 
to implement this provision. Concerning the Soviet failure in this regard during 
World War II, see note 211 supra ; concerning the North Korean and Chinese fail- 
ure in this regard during the Korean hostilities, see Hermes, Truce Tent 14-141; 



157 

The Information Bureau has one other function in addition to that 
of being a central data bank of prisoner-of-war personal information 
— it is the agency given the responsibility by the last paragraph of 
Article 122 for collecting and forwarding the ''personal valuables" 222 
of prisoners of war who are no longer in the custody of the Detaining 
Power. 223 The disposition of personal effects other than valuables is 
subject to arrangements to be agreed upon by the Detaining Power 
and the Power of Origin. 224 

A Central Prisoners of War Information Agency (Central Agency) 
is to be established on neutral territory. 225 The ICRC has defined the 
basic duties of the Central Agency as follows : 

(1) To centralize all information on PW . . . (announcement of 
capture, deaths, transfers, etc.) 

(2) To act as intermediary between the belligerent Powers for 
the transmission of this information. 

(3) To serve as an information bureau and on the basis of the 
data assembled in its card-indexes or of researches made, to an- 
swer enquiries from public or private organizations and private 
persons. 226 

This statement is somewhat broader than is specified in the second 
paragraph of Article 123, but there can certainly be no objection to 
that as long as the added activities are not contrary to the national 



and concerning the Chinese failure in this regard during the Sino-Indian border 
hostilities (1962) (while insisting that India furnish that very information with 
respect to civilian internees), see Cohen & Leng, Sino-Indian Dispute 296-97. As 
the North Vietnamese refused to apply the 1949 Geneva Convention in its entirety 
(see note 1-68 supra), they did not furnish lists of prisoners of war as required 
by Article 122, even though they were furnished lists by the Republic of Vietnam 
authorities covering all prisoners of war in the custody of that Power, no matter 
by whom captured. See, e.g., ICRC Annual Report 1968, at 30. 

222 "Personal valuables" are specifically stated to include "sums in currency 
other than that of the Detaining Power and documents of importance to the next 
of kin." (Emphasis added.) See note 62 supra. 

223 They will have been interned in a neutral country, or repatriated, or released, 
or have escaped, or died. 

224 See the last sentence of Article 122 and note 480 infra. See also pp. 84-86 
supra. 

225 Article 123, first paragraph. Since the first such Central Agency was estab- 
lished informally by the ICRC during the Balkan War (1912-13) [or during the 
Franco-Prussian War (1870-71), note 208 supra], such Agency has always been 
established in Switzerland and pursuant to a proposal advanced by the ICRC. 

226 2 ICRC Report 12. This volume of the ICRC's report on its humanitarian 
activities during World War II is devoted exclusively to the operations of the Cen- 
tral Agency. Preparations having wisely been commenced long before the actual 
outbreak of hostilities, the ICRC was able to advise the belligerents on 14 Septem- 
ber 1939 that a Central Agency had been established and was in operation in 
Geneva. (That Central Agency extended its operations beyond those stated in the 
text, providing information, for example, which permitted the reuniting of dis- 
persed families, tracing lost indivduals, etc.) 



158 

interests of a belligerent, which they certainly are not. If, for exam- 
ple, the Central Agency is willing to take upon itself the arduous task 
of answering inquiries from private organizations and private indi- 
viduals, this cannot possibly have an adverse effect on a belligerent 
and it can only make the Central Agency more effective in accomplish- 
ing the objective for which it was created: the prompt delivery of 
complete and correct information concerning all prisoners of war held 
by all Detaining Powers. 

Of course, the Central Agency will, for the most part, be only as 
effective as the cooperation which it receives from the belligerent 
Powers allows it to be. While it will have other sources of information 
to supplement that received from the Detaining Powers, 227 the great 
mass of its information must come from them. If they do not supply 
it to the Central Agency, the latter will not be able to pass it on to the 
Powers of Origin. If the belligerent Powers do not provide it with 
the facilities to transmit the information which it has received, that 
information will be of little value. As has been noted immediately 
above, the third paragraph of Article 122 requires the national Infor- 
mation Bureaux to furnish the required information to the Central 
Agency and to do this without delay and by the most rapid means 
available. The second paragraph of Article 123 makes it the responsi- 
bility of the Central Agency to collect this information, and that ob- 
tained through private channels, and to transmit it to the Power of 
Origin as rapidly as possible ; and obligates the belligerent Powers to 
assist it in so transmitting the information. 228 Only with this type 
of all-around cooperation will the letter and the spirit of these provi- 
sions of the Convention be fulfilled. 229 

9. Relief Shipments 

Few Detaining Powers will be in a position to comply fully with 
their obligations under the Convention as to food and clothing, par- 
ticularly if the armed conflict in which they are engaged continues 
over a considerable period of time. As has been seen, if the civilian 
population, and perhaps the armed forces, of the Detaining Power 



227 Of course, it will have one other major source of information — the Capture 
Cards which the prisoners of war are entitled to send directly to the Central 
Agency under the provisions of Article 70. See note 175 supra. 

228 The third paragraph of Article 123 requests all Parties to the Convention, 
and particularly the belligerent Powers, to provide the Central Agency with finan- 
cial assistance; and Article 124 gives the Central Agency (and the national In- 
formation Bureau) the benefits of the free-postage provision which Article 74 
gives to prisoners of war (see notes 194 and 195 supra) and either free use of the 
telegraph facilities or greatly reduced rates (see note 196 supra) . 

229 Some idea of the vastness of the operations of the Central Agency can be 
gathered from the fact that by June 1947 the World War II Central Agency had 
accumulated almost 36 million index cards (as compared to 7 million after World 
War I) . 2 ICRC Report 9 & 316. 



159 

are on a limited and possibly inadequate food ration, it is highly un- 
likely that prisoners of war will receive a sufficient ration to keep 
them in good health and to prevent loss of weight. 230 While there are 
other possible courses of action which the "law-abiding" Detaining 
Power can pursue in order to solve the problem, 231 the one which has 
been employed in past armed conflicts — and which will undoubtedly 
be employed again in the future — involves relief packages. A discussion 
of the extent to which the law relating to relief packages has evolved 
will be helpful in understanding the overall problem. 

Article 15 of the 1907 Hague Regulations provided for the distribu- 
tion of relief to prisoners of war by societies constituted for that pur- 
pose. The first paragraph of Article 16 of those Regulations provided 
for free postage on "parcels by post, intended for prisoners of war." 
This latter was the only reference in the Regulations with respect to 
individual relief packages, if such it was. Because of the stabilized 
fronts which characterized World War I, the belligerents were them- 
selves able to transport and distribute both general relief shipments, 
for prisoners of war and individually addressed parcels. 232 Neverthe- 
less, the two provisions contained in the 1907 Hague Regulations were 
repeated in almost identical form in the 1929 Convention; 233 but, in 
addition, Article 37 thereof contained a completely new provision 
allowing prisoners of war "to receive individually postal parcels con- 
taining foodstuffs and other articles intended for consumption or cloth- 
ing;" 234 and the third paragraph of Article 43 of that Convention 
charged the prisoners' representatives 235 with the responsibility for 
"the reception and distribution of collective consignments." 238 

The 1946 Preliminary Conference made a number of suggestions 
concerning relief supplies : that the principles of both individual and 
collective relief should be continued ; that Detaining Powers should be 
prohibited from unilaterally forbidding or limiting individual relief 
parcels ; that if any such limitations should be necessary, they should 



- :{0 See p 127 supra. 

2:il See pp. 127-128 supra. 

232 See 3 ICRC Report 5-6. This volume of the ICRC's report on its humanitar- 
ian activities during World War II is devoted exclusively to relief activities. 

2:n See Article 78 and the first paragraph of Article 38, respectively. 

2:54 (This unofficial English translation of the official French text is taken from 
118 L.N.T.S. at 371. It is a considerably better translation than the one used offi- 
cially by the United States, which appears in 47 Stat, at 2043.) More than 44 
million individually addressed parcels were sent from Switzerland and through the 
ICRC during the period 1940-45, inclusive. 3 ICRC Report 11. 

235 Concerning the "prisoners' representative," see pp. 293-307 infra. 

236 During the period 1942-45, inclusive, the ICRC alone handled over 380 million 
kilograms of collective relief supplies. 3 ICRC Report 271. It concluded that col- 
lective relief for prisoners of war was much more efficient than individual parcels 
when large numbers of prisoners of war were involved. Ibid., 202. So did the 1946 
Conference of National Red Cross Societies. 1946 Preliminary Conference 85. 



160 

be accomplished by special agreements ; and that the Power of Origin 
should be the one to fix the ratio between individual and collective 
relief supplies. 237 All of these recommendations, except the last, are 
to be found in the several articles dealing with the subject of relief 
parcels which were included in the various preliminary drafts of what 
ultimately became Articles 72-76 of and Annex III to the 1949 
Convention. 

The first paragraph of Article 72 is the basic provision with respect 
to relief parcels. It not only includes the general requirement that the 
Detaining Power shall permit prisoners of war to receive relief parcels, 
but also imposes a number of specific requirements on the Detaining 
Power: that the relief parcels may be received "by post or by any 
other means"; that such relief may be individual or collective; and 
that, in addition to the food and clothing referred to in prior interna- 
tional agreements, such relief may include four other general cate- 
gories of supplies (medical, religious, educational, and recreational), 
of which a number of specific examples are listed. 238 On the other 
hand, the last paragraph of Article 72 imposes two limitations on the 
contents of relief parcels : books may not be included in the same parcel 
with food or clothing; and medical supplies should normally be in- 
cluded in collective, rather than individual, relief parcels. 239 

As was noted in the discussion of the problem of food, the second 
paragraph of Article 72 specifically prohibits the Detaining Power 
from considering relief shipments, individual or collective, as in any 
way relieving it of the obligation to provide the prisoners of war with 
the ration provided for in the first paragraph of Article 26. 240 While 
this prohibition applies to all of the supply obligations imposed upon 
the Detaining Power by the Convention, it is probably only with re- 
spect to food, clothing, and medical supplies that the problem will 
arise ; and it is with respect to these three areas that many Detaining 



23? Ibid., 83-84. 

238 The term "medical supplies" was apparently considered, like foodstuffs and 
clothing, to be sufficiently all-embracing not to require elaboration (unless "scien- 
tific equipment" could be included here as well as under "articles of an educational 
character") ; the term "religious character" would include specifically books and 
devotional articles; the term "educational character" would include specifically 
books, scientific equipment, examination papers, and miscellaneous materials; and 
the term "recreational character" would include specifically books, musical instru- 
ments, and sports outfits. (It must not be assumed that every item which falls 
within these categories must and will be permitted entry and distribution by the 
Detaining Power. For a list of items which were excluded during World War II 
and which undoubtedly will, at least for the most part, always be denied to pris- 
oners of war, see 3 ICRC Report 12-13.) 

239 The latter limitation was presumably imposed as a result of the experiences 
of World War II. Ibid., 13-14. 

240 See note 107 supra. Concerning the same limitation with respect to clothing, 
see note 117 supra. 



161 

Powers can be expected to disregard the mandate of the second para- 
graph of Article 72, particularly where, as a result of individual and 
collective relief parcels, the prisoners of war are better off, or, at least 
as well off, as the members of the civilian population of the Detaining 
Power and, perhaps, as the members of its armed forces. 

As in the case of correspondence, provision was made for the con- 
tingency that limitations might have to be imposed on the shipment 
of relief parcels in the interest of the prisoners of war themselves 
because of the possible inability of systems of transportation available 
to the belligerents to handle the tremendous weight and bulk which 
relief parcels might well engender. 241 The third paragraph of Article 72 
provides that such limitations may be instituted only on the proposal 
of the Protecting Power, although the ICRC or any other humani- 
tarian organization engaged in relief activities, may, of course, place 
limitations on its own shipments if, for example, it is confronted with 
transportation problems. 242 

Relief shipments, like correspondence, are entitled to move postage- 
free. 243 They are also exempt from "import, customs and other 
duties." 244 The third paragraph of Article 74 is a somewhat strange 
provision in that it states that if a relief shipment cannot be sent by 
parcel post because of its weight or for any other cause, the Detaining 
Power shall bear the cost of substitute transportation in any territories 
under its control and other Parties to the Convention (whether or not 
belligerents) shall bear the cost in their territories. 245 It would have 
been more helpful overall if the Convention had specified maximum 
weights and dimensions for relief parcels sent by mail. This was the 
procedure followed during World War II, but since it was not pre- 
scribed by the 1929 Convention, each Detaining Power set its own 



241 See p. 147 supra. 

242 It will be recalled that the first paragraph of Article 71 has a provision con- 
cerning possible limitation on mail to the prisoners of war, if such limitations are 
deemed necessary. See note 180 supra. It would appear that this possibility is even 
more cogent in the case of parcels. 

243 See the second paragraph of Article 74 of the 1949 Convention and Article 
16(1) of the Rules applicable in common throughout the international postal serv- 
ice attached to the 1974 Universal Postal Convention. 

244 Article 74, first paragraph. In June 1942 the United States Congress adopted 
a joint resolution exempting from duties and customs charges all articles addressed 
to prisoners of war (56 Stat. 461, 462). 

245 States not parties to the 1949 Convention would have a similar obligation 
under Article 16(1) of the Common Rules attached to the 1974 Universal Postal 
Convention. In any event, the penultimate paragraph of Article 74 provides that 
costs not covered by the exemptions contained in the third paragraph of Article 74 
shall be charged to the sender. 



162 

weight limit. 246 Of course, it may be argued that a unilateral action of 
this nature is now proscribed by the provision in the third paragraph 
of Article 72 to the effect that u [t]he only limits which may be placed 
on these shipments shall be those proposed by the Protecting Power." 
Once again, as in the case of letter mail, 247 the first paragraph of 
Article 75 provides for the emergency transportation of relief parcels 
by the Protecting Power, the ICRC, or some other organization ap- 
proved by the belligerents, when condition prevent a belligerent from 
fulfilling its obligation in this respect. 248 If a belligerent prefers to 
make some arrangement other than the foregoing, it may do so; 249 
and barring agreement on another method of payment for the costs 
of the emergency transportation, the responsibility for such costs is 
placed proportionately on the Parties concerned. 250 

Another novel provision, and one which was also conceived because 
of occurrences during World War II, is contained in the second para- 
graph of Article 76. It prohibits the Detaining Power from the pre- 
delivery inspection of individual relief parcels under conditions that 
will expose the contents of the parcels to deterioration (such as the 
inspection outdoors, in rain, of packages containing food or books) ; 
and which requires that such inspection be conducted in the presence 
of the prisoner of war to whom the parcel was sent, or his designee. 251 
And just as in the case of correspondence, the Detaining Power is 
directed not to delay the delivery of individual or collective relief par- 
cels because of censorship problems. 

During World War II relief shipments of food, clothing, and medi- 
cal supplies made the difference between survival or nonsurvival to 
literally tens of thousands of prisoners of war. 252 There is no reason 
to doubt, and every reason to believe, that the same will be true in any 



246 3 ICRC Report 12. Eventually most of the Detaining Powers settled on a 
5-kilogram (11-pound) maximum. Ibid. Article 16(4) of the Common Rules at- 
tached to the 1974 Universal Postal Convention provides that free postage for 
prisoner-of-war parcels is limited to 5 kilograms but with a 10-kilogram allowance 
when the contents cannot be split up or when the parcel is sent to the prisoners' 
representative for distribution. 

247 See p. 153 supra. 

248 For one ICRC effort to obtain trucks and perform this service during World 
War II, see 3 ICRC Report 186-89. See also Feilchenfeld, Prisoners of War 37; 
and Maughan, Tobruk 808. 

249 Article 75, third paragraph. 

250 Article 75, fourth paragraph. 

251 Inspections of written or printed matter are specifically excepted from this 
latter requirement because it was feared that the presence of the prisoner of war 
might create difficulties which would react against him. 2A Final Record 370. 

252 American Prisoners of War 72, 81. 



163 

future international armed conflict which continues for a considerable 
period of time. 253 

10. Internal Discipline 254 

a. THE CAMP COMMANDER 

Article 39 provides that the prisoner-of-war camp shall be "under 
the immediate authority of a responsible commissioned officer belong- 
ing to the regular armed forces of the Detaining Power." The impor- 
tance of the selection of the proper individual for this position cannot 
be overemphasized. 255 Unfortunately, just as bullies and sadists all too 
frequently find their way into the civilian prison administration sys- 
tem sometimes as wardens, so they also often gravitate into the prison- 
er-of-war camp administration system, some becoming camp com- 
manders. 

Article 18 of the 1929 Convention had specified merely that a pris- 
oner-of-war camp should be commanded by a "responsible officer." 
During World War II noncommissioned officers were sometimes desig- 
nated by Detaining Powers as camp commanders. 256 It would appear 
that a good noncommissioned officer would make a better camp com- 
mander than a poor commissioned officer. Nevertheless, the 1949 Dip- 
lomatic Conference elected to eliminate this as a possibility by specify- 
ing that camp commanders must be commissioned officers. 257 

The 1947 Conference of Government Experts recommended that the 
basic provisions of Article 18 of the 1929 Convention be altered to 
provide that the camp commander must also be "an officer of the armed 
forces of the DP [Detaining Power]." 258 The draft convention sub- 



253 Two important facets of the problem of relief shipments are discussed else- 
where: the part played by the prisoners' representatives in the receipt and dis- 
tribution of collective relief shipments (pp. 305-306 infra) ; and the agreements 
which the opposing belligerents may enter into with respect to relief shipments 

(pp. 84-86 supra.) 

254 This section is not concerned with the imposition of disciplinary and penal 
sanctions on prisoners of war for penal offenses, a subject which is discussed at 
length in Chapter V. It is concerned with the responsibilities of the camp com- 
mander, regulations applicable to prisoners of war, military courtesies, rank, etc. 

255 One commentator has stated that "the attitude and tone of a camp for pris- 
oners [of war] is often controlled by the attitude and the personality of its com- 
mandant." Grady, Evolution 102. The camp commander also commands all attached 
labor detachments. See p. 245 infra. 

256 l ICRC Report 250. 

257 2A Final Record 264. Apparently the practice of naming noncommissioned 
officers as camp commanders was almost entirely limited to the Japanese. 

258 1947 QE Report 161. This was stated to be to prevent "the recurrence of cer- 
tain unpleasant incidents." We are not enlightened as to what these "unpleasant 
incidents" were, or how selecting the camp commander from the armed forces 
would prevent their recurrence. (The ICRC Report, note 256 supra, refers to occa- 
sions "when the camp commandant was not a national of the Detaining Power." 
This could conceivably have been the situation which gave rise to the "unpleasant 
incidents.") 



164 

mitted by the ICRC to the Stockholm Conference went a step further, 
requiring the camp commander to belong to "the regular armed forces 
of the Detaining Power," 259 and this requirement remained unchanged 
at Stockholm and was ultimately approved at Geneva. On the occasion 
of the only extensive debate on this Article none of the delegates at 
Geneva thought it necessary even to mention this change, so it is not 
possible to determine the problem which was thought to require solu- 
tion. Moreover, as has already been stated in the discussion of Article 
4, for the purposes of the Convention all full-fledged members of the 
armed forces of a belligerent, no matter how they became such, are 
members of its "regular armed forces." 260 

The camp commander is responsible, "under the direction of his 
government," for the application of the Convention in the prisoner-of- 
war camp. This addition to the cognate provision of the 1929 Conven- 
tion was added at Stockholm. 261 It was objected to by the ICRC, which 
considered it to be "imprecise, and also superfluous" and recommended 
its deletion. 262 This recommendation was supported by several delega- 
tions at Geneva 263 but was ultimately rejected by Committee II (Pris- 
oners of War), 264 and the added clause remains. While it undoubtedly 
is superfluous, as a military commander performs all of his functions 
under the direction of his government, no harm can be perceived from 
its having been included. Both the individual 265 and the government 266 
remain fully responsible for any violations of the Convention occur- 
ring in the prisoner-of-war camp. 267 



259 Draft Revised Conventions 16. (Emphasis added.) 

260 See note 1-138 supra. One explanation for the use of the term "commissioned 
officer belonging to the regular armed forces of the Detaining Power" here is that 
it was desired to prohibit a Detaining Power from designating as camp command- 
ers commissioned officers of nonmilitary organizations such as the German S.S. and 
Gestapo, as was done during World War II. British Manual para. 159 n.l. 

261 Revised Draft Conventions 66. 

262 Remarks and Proposals 48. 

263 2A Final Record 264 & 401. The Coordination Committee took the same posi- 
tion. 2B Final Record 149. 

1264 2A Final Record 401-02. The proposal to delete it had previously been re- 
jected by the Second Committee's Drafting Committee. Ibid., 348. 

265 The fear was expressed that the camp commander might be able to use 
this provision as a means of evading personal responsibility for unlawful acts 
committed by him against prisoners of war. Ibid., 401. The principle denying "su- 
perior orders" as a defense to a war crime is now too well established to cause 
such concern. I.M.T. 466; Nurnberg Principles, Principle IV, at 375; 1951 Draft 
Code of Offences, Article 4. Article 77 of the 1973 Draft Additional Protocol dealt 
with the subject of superior orders. It was not included in the 1977 Protocol I. 

266 Sec Article 12, first paragraph. 

267 When confronted with the problem of putting down the uprising that had 
occurred in the United Nations Command prisoner-of-war camp on Koje-do Is- 
land. Korea, in May 1952, General Boatner immediatelv requested "the assign- 
ment of a judge advocate [military lawyer] who was thoroughly familiar with 



165 

b. KNOWLEDGE OF AND AVAILABILITY OF THE CON- 
VENTION 

The very important Convention provisions respecting the require- 
ment for the dissemination of, and instruction in, the contents of the 
Convention are discussed elsewhere. 268 Compliance with the related 
provisions with respect to the camp commander and his personnel 
are at least of equal importance. 

The second paragraph of Article 127 provides that any military "or 
other authorities" 269 who are assigned prisoner-of-war responsibilities 
"must possess the text of the Convention and be specially instructed 
as to its provisions." 270 The first paragraph of Article 39 repeats this 
requirement specifically as to the camp commander, providing as it 
does that he must have a copy of the Convention in his possession. 
Moreover, the latter Article places upon him the responsibility for the 
implementation of the requirement therein contained, that the provi- 
sions of the Convention be known to both his staff and to the members 
of the camp guard. Obviously, there can be no more important require- 
ment than that the individuals responsible for the direct daily supervi- 
sion of the activities of prisoners of war be fully instructed concerning 
the rights and obligations both of the prisoners of war and of the 
representatives of the Detaining Power. Absent that instruction and 
the knowledge resulting therefrom, the Convention serves no useful 
purpose except to lay down rules the violation of which will, in some 
cases, eventually result in the punishment of the violators. Certainly, 
the objective of the Convention is to procure humanitarian treatment 
for prisoners of war, not to serve solely as a vehicle for the punishment 
of uninformed guards for their perhaps unwitting violations of its 
provisions. 

If there is to be some assurance that prisoners of war will receive 
the humanitarian treatment which was contemplated by the 1949 
Diplomatic Conference and to which they are entitled under the pro- 
visions of the Convention, obviously they, too, must be fully informed 
as to just what that treatment is. Presumably, they will have received 
instruction in this regard during their training by the armed force 



the Geneva Conventions." Boatner, Lessons 35. Concerning this incident, which 
has many instructive features, see Hermes, Truce Tent 233-62; Vetter, Mutiny, 
passim; Harvey, Control, passim. 

268 See pp. 93-96 supra. 

269 While a civilian could not legally be designated as a camp commander (see 
pp. 163-164 supra), there is no prohibition against the use of civilian guards who 
might be used either in prisoner-of-war camps, or more probably, for labor de- 
tachments. See pp. 246-247 infra. 

270 The Convention limits the applicability of this provision to "in time of war." 
It surely was not intended that the provision would be inapplicable in the event 
of the "any other armed conflict" of the first paragraph of Article 2. 



166 

to which they belong. 271 However, that instruction may have occurred 
at some considerable time in the past and the prisoners of war cannot 
be expected to have remained fully aware of the countless details of 
the many provisions of the Convention. The last paragraph of Article 
41 provides, therefore, that the text of the entire Convention, including 
its annexes and any special agreements entered into between the De- 
taining Power and the Power of Origin, shall be posted in every pris- 
oner-of-war camp in places where they will be available to be read 
by any prisoner of war. 272 In addition, a copy must be supplied to any 
prisoner of war who requests it and who is, for some reason, unable 
to gain access to the posted copy (individuals who are ill and confined 
to bed or quarters, individuals in disciplinary or penal confinement, 
individuals on location in labor detachments removed from the camp, 
etc.). 273 

There was a substantially similar provision in Article 84 of the 
1929 Convention. 274 Its value was demonstrated during the course of 
World War II. One American author, writing during the course of 
that armed conflict, said that "the most assiduous group of legal schol- 
ars in this country today are our Italian and German prisoners of 
war." 275 In Korea it was only after a board of officers was appointed 
in February 1951 to investigate prisoner-of-war matters generally, 
and it had so recommended, that copies of the 1949 Convention were 
reproduced in Korean and posted in the United Nations Command 



271 See pp. 93-96 supra. 

272 The posted copies must, moreover, be in the language of the particular pris- 
oners of war. 

273 It is undoubtedly with all of the foregoing in mind that the First United 
Nations Congress on the Prevention of Crime and the Treatment of Offenders 
adopted a somewhat similar provision for the treatment of prisoners serving sen- 
tences for having committed a crime. See Article 35, Standard Minimum Rules. 
Even though a set of Rules was approved by the League of Nations as far back 
as 1934 (See League of Nations, Official Journal, Special Supplement No. 123, 
VI. 4, at 17 (1934)), we shall have occasion to note many resemblances between 
the 1949 Convention and the present Rules. 

274 One author who was particularly concerned with German practices in this 
regard during World War II wrote that certain Detaining Powers, including 
Germany, "had deliberately prevented prisoners of war from becoming familiar 
with the text [of the 1929 Convention]. For the future, the new Conventions have 
remedied this lacuna." Tchirkovitch, Nouvelles conventions 106 (trans, mine). 
There was no such lacuna; and it is being overly optimistic to state with such 
assurance that the 1949 Convention has "remedied" the situation. 

275 Brabner-Smith, Legal Aspects 44. He gives examples of several objections 
made by the prisoners of war to various types of work assignments based upon 
the wording of the 1929 Convention (picking cotton was alleged to have a "direct 
relation with war operations" because cotton is used in gunpowder; lumbering 
was alleged to be "unhealthful or dangerous work.") To the same effect, see Rich. 
Brief History 427. 



167 

prisoner-of-war camp. 270 In Vietnam, the government of the Republic 
of Vietnam did not permit the posting of the Convention because it 
did not believe that all of the provisions of the Convention were ap- 
plicable. 277 

c. REGULATIONS 

Every Detaining Power will have a number of different categories 
of regulations (and orders) that are applicable to prisoners of war. 
There will be the relevent regulations in force for its own armed 
forces; 278 general regulations applicable only to prisoners of war; 279 
regulations peculiar to a particular prisoner-of-war camp, etc. 280 The 
available to the Detaining Power (Article 71, first paragraph). And 
second paragraph of Article 41 provides that all such regulations, or- 
ders, etc., must, like the Convention itself, be posted and in a language 
which the prisoners of war understand ; 281 and all orders given orally 
to individual prisoners of war must likewise be in a language which 
they understand. 282 These provisions of the Convention are clear and 
unambiguous and, while compliance with them may cause some prob- 
lems for the Detaining Power, they will obviously be of great value to 
the prisoner of war. 

d. RANK 

Even Article 16, providing for the equal treatment of all prisoners 



276 Meyers & Bradbury, Political Behavior 240. The Convention was not legally 
in effect during that conflict (see note 1-114 supra). The Republic of Korea had 
agreed to be bound only by Article 3 (1 ICRC, Conflit de Coree 12-13) and the 
United States had agreed to be only "guided by the humanitarian principles" of 
the Convention, particularly Article 3. Ibid., 13. The Convention was never posted 
in North Korea. 

277 Vietnam, Article- by-Article Review, Article 41. Of course, in both Korea and 
Vietnam any compliance whatsoever by the Republic of Korea or the Republic of 
Vietnam represented a more humanitarian approach to the treatment of prisoners 
of war than the complete noncompliance by the other side. Strangely, the Review 
itself did not indicate any specific provisions of the Convention which the Repub- 
lic of Vietnam considered to be inapplicable. 

278 Article 82, first paragraph, makes prisoners of war subject to these regula- 
tions. See pp. 318-319 infra. 

279 Article 82, second paragraph, envisages such regulations. See pp. 320-321 
infra. 

280 Daily schedules, work assignments, class schedules, sports events, etc. 

281 It will have been noted that while the first paragraph of Article 41 says "in 
the prisoners' own language," the next paragraph says "in a language which they 
understand." It is probable that this was merely an oversight of the Drafting 
Committee. The difference in wording actually originated in the draft prepared by 
the ICRC for the Stockholm Conference (Draft Revised Conventions 76-77) and 
was never changed. 

282 This will sometimes create major difficulties for a Detaining Power short of 
personnel who speak the language of the prisoners of war; but it is a great deal 
more logical than the giving of an order of which the prisoner of war does not 
understand a single word and then permitting his punishment for his failure to 
comply, a procedure frequently followed during World War II. 



168 

of war "without any adverse distinction based on race, nationality, re- 
ligious belief or political opinions, or any other distinction founded 
on similar critaria," makes an exception with respect to rank. 283 

Because of the difficulty frequently encountered in attempting to 
equate the ranks in various armed forces, the first paragraph of Ar- 
ticle 43 calls upon the opposing belligerents to communicate to each 
other immediately upon the outbreak of hostilities "the titles and ranks 
of all the persons mentioned in Article 4" ; as well as to communicate 
information from time to time concerning titles and ranks subsequent- 
ly created. Most of the belligerents exchanged the required informa- 
tion during World War II, 284 but they often found it difficult to equate 
the ranks involved. 285 Even where there was no difficulty in equating 
ranks, problems arose with respect to this matter. Thus, when the 
Germans ordered members of the French armed forces back into cus- 
tody in 1941, many noncommissioed officers at first claimed to be pri- 
vates because of a rumor that privates would be released first. When 
they later found that there was no basis for this rumor and claimed 
their proper grade, the Germans refused to restore it to them ; 286 and 
in the reverse of this situation, the United States found that many 
German privates had been promoted to noncommissioned grade just 
before capture in North Africa, presumably in order to remove them 
from the category of prisoners of war required to perform labor for 
the Detaining Power ; 287 while others claimed to be noncommissioned 
officers but had no documentary proof of this status. 288 This latter 



2 8 3 And sex. See pp. 178-180 infra. 

284 1 ICRC Report 283; [1942] 3 For. Rel. U.S. 24-32 (1961). Concerning the 
exchange of information regarding the ranks of medical personnel, see note IV- 
121 infra. 

285 German Regulations, No. 15, para. 117 (British midshipmen, warrant offi- 
cers, and acting pilot officers) ; ibid., No. 25, para. 334 (American warrant offi- 
cers) ; ibid., No. 29, para. 439 (commissioned officers in the Indian army) ; ibid., 
No. 33, para. 514 (noncommissioned officers in the British navy) ; ibid., No. 46, 
para. 841 (noncommissioned officers in the Royal Air Force). The United States 
also had difficulty with the ranks of the members of the German "quasi-military" 
organizations. Rich, Brief History 515. 

286 German Regulations, No. 7, para. 9. 

287 Ri c h, Brief History 515; Lewis & Mewha 157. The diary of one captured 
member of the German Afrika Korps reveals that after destroying everything 
of military value in anticipation of the impending surrender of the German forces 
in North Africa, he was promoted to NCO rank. Hoole, And Still We Conquer 9. 
Concerning the labor of noncommissioned officers, see pp. 221-224 infra. 

288 Rich, Brief History 516. Their soldbuchs (individual personnel records nor- 
mally in the possession of each German soldier) had, in many cases, been taken 
from them for intelligence purposes and had not been returned. Perhaps because 
of the obvious hardship thus caused to prisoners of war through no fault of their 
own, U.S. Army Regs. 633-50, para. 30b now provides that where an individual 
has no documentary proof of his rank, he "may submit a request through channels 
to his government for proof of status." 



169 

problem may conceivably have been solved by the provisions of the 
third paragraph of Article 17 for the issuance of identity cards in 
duplicate showing, among other items, the rank of the individual, and 
the provisions of the second paragraph of Article 18 which, in effect, 
prohibit the taking from the prisoner of war of both copies of the 
identity card furnished him by his own armed forces and requiring 
the Detaining Power to provide such a card to any prisoner of war who 
does not have one. 289 

As a result of the discovery of the mass, last-minute, "precapture 
promotions" accorded by the German command to many of its private 
soldiers in North Africa during World War II, and as a method of 
rectifying the situation with respect to at least a considerable number 
of these promotions, the United States Army issued a directive deny- 
ing recognition of any promotion if evidence of it was received after 
the individual was already in custody. 290 Of course, this prevented 
recognition of even legitimate postcapture promotions. The second 
paragraph of Article 43 now provides that the Detaining Power must 
recognize promotions of which it is notified by the Power of Origin. 
Presumably, this would include promotions made both before and af- 
ter the individual becomes a prisoner of war. 291 This appears eminently 
fair — except that a Power of Origin may now do legally what the 
German command in Africa attempted to do as a subterfuge during 
World War II. What will a Detaining Power do if it is officially advised 
that the Power of Origin has promoted to noncommissioned officer 
grade all of the members of its armed forces who are being held as 
prisoners of war? Will it thereafter assign them to supervisory work 
only as provided by the second paragraph of Article 49 — with no one 
to supervise? This appears extremely unlikely. It would seem that 
any action of this nature by the Power of Origin would be such a 
violation of the spirit of the Convention as to warrant the Detaining 
Power in refusing recognition to the promotions to noncommissioned 
officer grade so accorded. 

There are numerous advantages for the prisoner of war in the rec- 
ognition by the Detaining Power of the prisoner of war's rank, com- 
missioned or noncommissioned. As we have just seen, noncommis- 
sioned officers may be required to perform only supervisory work. 
Under the last paragraph of Article 49 commissioned officers may vol- 
unteer for work but may not be compelled to perform any labor. They 



2g 9 See p. 111-112 supra. 

29 Rich, Brief History 515. 

291 U.S. Army Regs. 633-50, para. 31 provides that "[w]hen evidence is re- 
ceived that a PW has been promoted, the promotion will be recognized." 



170 

(and prisoners of war of equivalent rank) 292 are entitled to be treated 
"with the regard due to their rank and age." 293 Special camps for offi- 
cer prisoners of war are contemplated and enlisted men of the same 
armed forces are to be assigned as orderlies, which is to be their ex- 
clusive work assignment. 294 Moreover, under the last paragraph of 
Article 44 commissioned officers are to be enabled to supervise their 
own mess. The first two paragraphs of Article 45 provide similarly 
that the other prisoners of war shall be treated with due regard for 
their rank and age and are to be enabled to supervise their messes. 

Provisions of the Convention concerning insignia and the military 
courtesy of the salute are, to the prisoner of war, far more important 
than they might at first appear. 295 As we have just seen, the first para- 
graphs of Articles 44 and 45 require the Detaining Power to treat all 
prisoners of war with due regard for their rank. Article 40 requires 
the Detaining Power to permit prisoners of war to wear insignia of 
rank and grade, badges of nationality, and decorations. The fourth 
paragraph of Article 87 goes a step further, forbidding the Detaining 
Power to deprive the prisoner of war of his rank or to prevent him 
from wearing his insignia. 296 

Members of the armed forces of the Detaining Power are not re- 
quired to salute prisoners of war of superior rank. 297 Ordinary mili- 



292 This might, for example, be persons who accompany the armed forces pur- 
suant to Article 4A(4) {see pp. 60-62 supra) if the identification card which the 
Power of Origin has issued to them specifies an equivalent rank. 2A Final Record 
268. 

293 The Convention nowhere specifies what this "regard" is. 

294 Article 44, second paragraph. During World War II the United States as- 
signed to officer prisoners of war, in addition to cooks, "one orderly for each 
general officer, one for each group of three field officers [majors, lieutenant col- 
onels, and colonels], and one for each group of six company officers [lieutenants 
and captains]." POW Circular No. 1, para. 45. (Lewis & Mewha, 159, gives a dif- 
ferent ratio and adds that the enlisted men chosen for this duty were those who 
were incapable of doing a full day of labor.) 

295 The recognition of their importance to morale was early recognized by the 
Chinese Communists in Korea and the denial of rank was used as a method of 
destroying prisoner-of-war morale. See pp. 172-173 infra. 

296 This prohibition is in the context of punishment for a disciplinary or penal 
offense. It would, a fortiori, apply to conduct which, while perhaps objectionable 
to the camp commander or to a guard, did not attain the status of being judicially 
punishable. 

297 It might be argued that the provisions of the first paragraph of Article 44 
to the effect that prisoner-of-war officers "shall be treated with the regard due 
to their rank" requires members of the armed forces of the Detaining Power to 
salute prisoner-of-war officers of superior rank. However, the second paragraph 
of Article 21 of the 1929 Convention was substantively identical and it was not 
the practice during World War II, nor did any belligerent claim that it should 
be. As the matter was not even mentioned at the 1949 Geneva Diplomatic Con- 
ference, it must be assumed that there was no intention to change the prior prac- 
tice. Hitler is quoted as having said that "the most humble German national is 



171 

tary courtesy, however, calls for them to return the salute of a prisoner 
of war. 298 Prisoners of war other than officers must salute all officers 
of the armed forces of the Detaining Power and must comply with any 
other requirements for external marks of respect contained in their 
own military regulations. 299 Officer prisoners of war are required to 
salute only the camp commander, whatever his rank may be, and offi- 
cers of the armed forces of the Detaining Power who are their superior 
in equated rank. 300 

One other problem with respect to saluting arose during World War 
II — the type of salute to be given. The relevant clause in the second 
paragraph of Article 18 of the 1929 Convention merely said that "pris- 
oners of war must salute all officers of the Detaining Power." 301 Ger- 
many insisted that prisoners of war held by it use "the established 
military salute of their native country" ; 302 while some Detaining Pow- 
ers refused to permit prisoners of war to give the German Nazi and 
Italian Fascist extended-arm salutes and insisted that these prisoners 



deemed more important than the highest ranking [prisoner of war]." German 
Regulations, No. 14, para. 79. To a certain limited extent this is correct. The pri- 
vate who is a guard in a prisoner-of-war camp need not salute the prisoner-of-war 
field marshal — but neither need the latter salute the former. See text in connec- 
tion with note 300. 

298 The military salute is a twofold action: it is initiated by the lower in rank 
and returned by the superior. While the member of the armed forces of the De- 
taining Power need not initiate the salute even to a prisoner of war of superior 
rank, he should, as a matter of military courtesy, return it. Rich, Brief History 
483. 

299 Article 39, second paragraph. Other external marks of respect would include 
standing when the officer enters the room, remaining at attention while convers- 
ing with the officer, etc. These are not marks of obsequiousness, but of disciplined 
training. (One report on World War II comments on the high morale of prisoners 
of war who "showed their hostility toward the Germans by often refusing to 
salute [and] by failing to come to attention when a German officer entered the 
barracks." American Prisoners of War 80. Their morale may well have been high, 
but they would have had no valid complaint had they been punished for their in- 
subordinate violations of the Convention and German regulations.) 

300 Article 39, third paragraph. Article 18, third paragraph, of the 1929 Con- 
vention -had not included a provision requiring all prisoners of war to salute the 
camp commander, and this had occasioned a number of disputes when he was of 
inferior rank or a noncommissioned officer. 1 ICRC Report 250. The 1949 Con- 
vention provides a sort of compromise by requiring the camp commander to be a 
commissioned officer (Article 39, first paragraph) and by aberrantly requiring all 
prisoners of war to salute him even if they are his superior in rank (Article 39, 
last paragraph). 

301 The clause concerning compliance by prisoners of war with the regulations 
of their own armed force was so placed in the sentence as probably not to be 
applicable to the clause concerning the salute. (The ICRC felt otherwise. Ibid.) 

302 German Regulations, No. 16, para. 140. This position, of course, was consis- 
tent with the German argument for permitting the members of its armed forces 
who became prisoners of war to use the Nazi salute. See text in connection with 
notes 303 and 304. 



172 

of war give the form of salute used by the armed forces of the De- 
taining Power. 303 This was finally resolved by permitting all prisoners 
of war to use the salute prescribed by the military regulations of the 
armed forces of which they were members. 304 This problem should not 
arise again because of the precedent established by the World War II 
decision, and because there is a more valid basis than there was under 
the 1929 Convention for arguing that the clause "by the regulations 
applying in their own forces" contained in the second paragraph of 
Article 39 of the 1949 Convention applies to the form of the salute 
as well as to external marks of respect, While, grammatically, the 
paragraph as redrafted still leaves much to be desired, 305 the members 
of the national delegations at the 1949 Diplomatic Conference were 
certainly well aware of the problem and of its World War II solution, 
and can validly be assumed to have adopted that solution as their own. 

While acting as the Detaining Power in North Korea, the Chinese 
did everything in their power to destroy morale by breaking down 
the military group structure. 306 Officers were not permitted to wear 
their insignia of rank ; distinctions of rank were prohibited ; and any 
officer, commissioned or noncommissioned, who attempted to give an 
order was humiliated and punished. 307 The Chinese insisted that mem- 
bers of the armed forces lost their rank when they became prisoners 
of war — and they frequently and intentionally appointed the more 
junior prisoners of war as leaders in the prisoner-of-war camps. 308 
The Chinese practices were in direct violation of a number of the ar- 
ticles of the Convention. 309 They were also contrary to general military 



3 °3 1 ICRC Report 250; Rich, Brief History 482. 

304 1 ICRC Report 250. The military authorities in the United States were 
severely criticized for permitting prisoners of war to use the Nazi salute. Rich, 
Brief History 482. 

305 The discussion of Article 39 in its origin and at the 1949 Geneva Diplomatic 
Conference is not helpful. 

3 6 Schein, Patterns 257. 

307 U.K., Treatment 19. 

308 Ibid., 17. It was this practice against which part of Sec. IV of the Code of 
Conduct was directed. Ineptly, it states: "If I am senior, I will take command. If 
not I will obey the lawful orders of those appointed over me and will back them 
up in every way." (Emphasis added.) Certainly, there was no intention to give 
a legal status to the type of "appointments" made by the Chinese Communists in 
Korea — but that would likely be the defense, and an arguable one, made by any 
American prisoner of war who, after repatriation, was court-martialed for cooper- 
ating with the enemy by obeying the orders of a fellow prisoner of war "appoint- 
ed over him" by the enemy Detaining Power. (While the "Instructional Material" 
under Sec. IV of the Code of Conduct does clarify the matter to some extent, it 
certainly does not completely clear up the discrepancy.) The North Vietnamese ap- 
parently followed the Chinese procedure. Naughton, Motivational Factors 11. 

3°° Article 39, last paragraph; 40; 44, first two paragraphs; 45. first para- 
graph; 79, first two paragraps; and 87, last paragraph, among others. 



173 

usage. 310 It was part of a "brainwashing" technique which was only 
very marginally successful. 311 

11. Miscellaneous Protections 

a. COMMON TREATMENT 

The preceding subsection opened with a quotation from Article 16 
of the Convention 312 — but only to point out that rank was one of the 
exceptions specified therein. What that Article does is to place upon 
the Detaining Power the duty to treat all prisoners of war alike, "with- 
out any adverse distinction based on race, nationality, religious belief 
or political opinions, or any other distinction founded on similar 
criteria." 

The 1907 Hague Regulations were criticized for not including a pro- 
hibition against discrimination in the treatment of prisoners of war. 313 
Article 4 of the 1929 Convention remedied this situation to some ex- 
tent by providing that any difference in treatment accorded various 
prisoners of war was only lawful when it was based on rank, health, 
professional qualifications, or sex. 314 However, despite the foregoing, 
there were extremes of treatment of different nationalities, and even 
of identifiable groups within nationalities, by the same Detaining Pow- 
er during World War II. 315 All, or nearly all, of the belligerents made 
national and political distinctions in asigning prisoners of war to par- 



310 See, e.g., British Manual para. 159 n.2, which states: "By Q.R. 286, when 
members of the British army become prisoners of war the ordinary relations of 
superior and subordinate remain unaltered." See also U.S. v. Floyd; and Re 
Tassoli. 

311 As yet not enough information is available to determine 'whether the North 
Vietnamese failure to follow the Chinese practice was because of its lack of quan- 
titative success, because of the relatively small number of prisoners of war held 
by them, or because of some other reason. 

312 See pp. 167-168 supra. 

313 Phillimore & Bellot 60. 

814 Article 1 of the 1929 Wounded-and-Sick Convention specifically required 
that individuals protected by that Convention be "treated. . .and cared for. . .with- 
out distinction of nationality," a provision, which, for some unknown reason, was 
not repeated in the 1929 Prisoner-of-War Convention drafted at the same time 
and by the same Conference. 

315 Germany at least generally attempted to apply this provision with respect 
to British and American prisoners of war, and 99 percent of the American prison- 
ers of war held by Germany survived. The American Red Cross attributed this to 
reciprocal compliance with the provisions of the 1929 Convention. New York 
Times, 2 June 1945, at 8, col. 6. See also note 324 infra. Estimates of the mortal- 
ity among- Russian prisoners of war captured by the Germans go as high as 95 
percent. Dallin, German Rule 414-15; Davidson, The Trial of the Germans 32-33. 
The 1929 Convention was not in effect as between Germany and the Soviet Union. 
See note 1-2 supra. 



174 

ticular camps. 316 There is nothing inherently wrong with this proce- 
dure, providing all prisoners of war in all camps receive the same 
treatment. 317 The objection to it is that, whatever the original motiva- 
tion for the separation, there will inevitably be a tendency to give 
better treatment to the more pliant prisoners of war, and less favorable 
treatment to the more aggressive and antagonistic prisoners of war. 

In an effort to remedy this situation, the 1946 Preliminary Confer- 
ence recommended that the rights of all prisoners of war to like treat- 
ment be recognized "without distinction of opinion [,] race, religion, 
or nationality." 318 This was just a general recommendation, unrelated 
to any particular article. However, in dealing with proposed revisions 
of the 1929 Wounded-and-Sick Convention, the Preliminary Confer- 
ence specifically recommended that the appropriate article be changed 
to provide for like treatment "without any distinction whatever, par- 
ticularly of nationality, race, sex, religion or political opinion."' 519 This 
was the source for much of what became Article 16 of the 1949 Pris- 
oner-of-War Convention. 320 

Although the general approach to the problem has been somewhat 
widened (while the 1929 Prisoner-of-War Convention enumerated only 
the items which would justify discriminatory treatment, the 1949 Con- 
vention enumerates both the items which will justify it and the items 
which may not be a basis for discriminatory treatment), it is doubtful 
that this has either ensured greater protection for the prisoner of war 
or imposed any obviously greater restrictions on the actions of the 
Detaining Power. If the Detaining Power may only lawfully discrimi- 
nate in its treatment of prisoners of war by reason of rank, health, 
professional qualifications, or sex (as provided in the 1929 Convention 
and as more or less repeated in the 1949 Convention), then obviously 



31G At least six different national and political groupings were established and 
maintained for the allocation of prisoners of war to permanent prisoner-of-war 
camps in the United States; (1) German army anti-Nazis; (2) other German 
army; (3) German navy anti-Nazis; (4) other German navy; (5) Italian; and 
(6) Japanese. Lewis & Mewha 91 n.44; see also, Tollefson, Enemy Prisoners of 
War 59. 

317 One commentator asserts that the only objective of categorizing by political 
conviction is inequality of treatment. Flory, Nouvelle conception 66. That this is 
a possibility cannot be doubted. See text in connection with notes 332-334 infra. 
However, the official ICRC discussion of Article 16 states that "[t]he wording 
excludes differentiation only when it is of an adverse nature." Pictet, Commen- 
tary 154. And in Korea the ICRC Delegate specifically recognized the urgent need 
that in establishing a new camp for officer prisoners of war "the two political cat- 
egories [Communist and anti-Communist] would be kept apart and every group 
could have an adequate amount [sic] of orderlies recruited among volunteer E.M. 
[enlisted men] of the same political colour." 2 ICRC, Con flit dc Coree, No. 341. 
Sec also the discussion of the third paragraph of Article 22 at pp. 175-178 infra. 

318 1946 Preliminary Conference 68. 

319 Ibid., 19. 

320 Draft Revised Conventions 60-61. 



175 

it may not lawfully discriminate by reason of race, nationality, reli- 
gious belief, or political opinions, or any other distinction founded on 
similar criteria. In other words, while perhaps somewhat more spe- 
cific, the provisions of Article 16 of the 1949 Convention do not really 
go beyond those of Article 4 of the 1929 Convention. 321 

Moreover, the third paragraph of Article 22 actually requires the 
Detaining Power to allocate prisoners of war to its various prisoner- 
of-war camps on the basis of nationality, language, and customs. The 
1907 Hague Regulations had contained no prohibition against the mix- 
ing of prisoners of war of different nationalities, races, and colors in 
a prisoner-of-war camp. It was criticized for thus permitting the bring- 
ing together of individuals who could communicate to each other in- 
fectious diseases 322 against which the infected individuals would not 
have a natural immunity. Perhaps as a result of this criticism, when 
the 1929 Convention was drafted, it contained a provision in its third 
paragraph of Article 9 prohibiting the Detaining Power, so far as 
possible, 323 from "assembling in a single camp prisoners of different 
races or nationalities." We have already seen that many nations did 
segregate by nationality during World War II. 324 They were thus ac- 
tually complying with the requirements of the 1929 Convention, what- 
ever their motive in so doing may have been. 

The portion of the third paragraph of Article 22 discussed above 
could, under some circumstances, result in an unintended hardship 
either for the Detaining Power or, of more importance, for the pris- 
oner of war. Some armed forces are composed of individuals of many 
nationalities, languages, and customs, mirroring the nation of which 
they are a part. When these individuals become prisoners of war, 
should the Detaining Power be required to separate them into those 
constituent categories, perhaps even against their desires? And what 
of the national of one country who is captured while serving in the 
armed force of another? Should he be separated from the men with 



321 Article 6(1) of the Standard Minimum Rules, while obviously deriving from 
Article 16 of the 1949 Convention, has clearly benefited from the latter's birth 
pains. 

322 Phillimore & Bellot 56-60. 

323 For example, a Detaining Power might hold a very limited number of pris- 
oners of war of a particular race or nationality. It might then put them in a sep- 
arate compound which was part of a larger prisoner-of-war camp. This complied 
with the third paragraph of Article 9 of the 1929 Convention. 1 ICRC Report 248. 

324 See text in connection with note 316 supra. Germany attempted to go a step 
further and to separate Jewish prisoners of war from the other prisoners of war 
of the same nationality, with the admonition that ''in all other respects" they were 
to receive treatment identical to that received by their fellow nationals. German 
Regulations, No. 48, para. 876. Sometimes the German camp commander was suc- 
cessful in complying with this mandate (American Prisoners of War 90-91) and 
sometimes he was unable to overcome the resistance of the non-Jewish prisoners 
of war of the same nationality (ibid., 75) . 



176 

whom he has served and, perhaps, with whom he has been captured? 
The provision approved at Stockholm would probably have mandated 
such procedure in each of these cases. 325 At the 1949 Diplomatic Con- 
ference the United Kingdom representative proposed an amendment 
which was directed at preventing the separation of an individual from 
other members of the armed force in which he was serving at the time 
of his capture. 326 After some colloquy between the representatives of 
the Soviet Union and the United Kingdom, the proposal which had 
been made by the latter was adopted by Committee II (Prisoners of 
War) ; 327 but at the Plenary Meeting the Soviet proposal, with a British 
amendment permitting a prisoner of war to be separated from other 
members of the armed force in which he was serving at the time of 
capture only if he consented to such separation, was approved. 328 Thus, 
the individual who is serving in the armed force of an ally of his country 
at the time of his capture will normally be confined in a prisoner-of- 
war camp with other members of that armed force. However, if the 
Detaining Power so desires, and if the prisoner of war consents, he 
may be transferred to confinement with the members of the armed 
forces of his own country. 329 

What of the situation where an armed force is composed of individ- 
uals of many nationalities, languages, and customs? Although the 
travaux preparatoires referred to above indicate that this problem 
was not mentioned during the discussion and amendment of what is 
now the third paragraph of Article 22, it is fairly obvious that this 
was a motivating factor in the position taken by the Soviet represen- 
tative. 330 The Soviet Union and, hence, the Soviet armed forces, is com- 
posed of people of many nationalities, many languages, and many cus- 



:*25 Revised Draft Conventions 60. 

; <- r > 2A Final Record 347. 

' A -~ Ibid., 353-54. Actually, it is somewhat difficult to discern how the Soviet pro- 
posal differed substantively from that of the United Kingdom proposal of that 
time. 

328 2B Final Record 281. 

329 Thus, in a situation such as that which occurred during World War II, 
where many Americans had joined the British or Canadian armed forces before 
the United States became a belligerent, and had elected to continue to serve in 
the allied armed force after that event, if they were captured they were normally 
confined with other members of the armed force in which they were serving at the 
time of capture. See note 1-299 supra. However, with their consent, they could now 
be confined with other American prisoners of war, i.e., with American nationals 
who were serving in the United States armed forces at the time of capture. 

330 It is also why he objected to the United Kingdom proposal to add the clause 
concerning the consent of the prisoner of war — until, probably, the Soviet Delega- 
tion concluded that this could be made to serve the Soviet interest. The Soviet 
representatives were not here concerned with problems which might arise when 
the Soviet Union was the Detaining Power, but only with those arising when 
members of their armed forces became prisoners of war. (The foregoing is not 
intended to have pejorative implications. It is the way every nation negotiates.) 



177 

toms. However, as they would all have been serving in the same armed 
force when captured, they would have a right to be confined together 
and could only be segregated with their consent. Of course, this does 
not mean that all of the prisoners of war of one armed force must be 
assembled in one prisoner-of-war camp. There may, and usually will, 
be a number of camps and in each camp there may, and usually will, 
be a number of compounds (or other smaller enclosures) . In breaking 
the mass of prisoners of war down into camps and compounds, the 
Detaining Power will probably, for its own administrative purposes, 
put all of the prisoners of war of a particular nationality or language 
in the same compound or compounds, camp or camps. 3,51 As the pris- 
oners of war so combined in the compounds or camps would, in each 
case, as well as overall, all be members of the same armed force, not 
only is there no prohibition against such procedure, but it is actually 
contemplated and required by the third paragraph of Article 22. 

Although Article 16 and the third paragraph of Article 22 certainly 
represent one of the basic "humanitarian principles" of the Convention 
with which the belligerents in Korea agreed to comply, 332 there can 
be no doubt of its utter disregard by the Chinese Communists during 
the course of their participation in that armed conflict. For example, 
despite the prohibition against discrimination based on political opin- 
ions, the Chinese Communist treatment of prisoners of war held by 
them in North Korea was based entirely on a policy of good treatment 
for the so-called progressives (those prisoners of war who would co- 
operate with them in the political field) and bad treatment for the so- 
called reactionaries (those prisoners of war who refused to cooperate 
with them in the political field). 333 The discrimination based on politi- 
cal opinion included good food for the progressives and poor food for 
the reactionaries. 334 

While the maintenance of discipline and order in prisoner-of-war 
camps has frequently been somewhat of a problem, it only reached 
really serious proportions in Korea where the Communists, North Ko- 



.331 p or example, India, and its armed forces, is composed of many nationalities 
with different languages and different customs — Hindus, Sikhs, Bengalis, Pan- 
jabis, etc., etc. If any large number were captured the Detaining Power might, 
perhaps, try to identify and segregate in separate compounds or camps the mem- 
bers of each of these groups. 

332 See note 1-114 supra. Even though this commitment was made on the Com- 
munist side by the North Koreans only, it must be recalled that the People's Re- 
public of China insisted that the million or more fully equipped, trained, and or- 
ganized Chinese troops in Korea were merely "volunteers" serving in the North 
Korean army. 

333 U.K., Treatment 32. One student of the practices of the People's Republic of 
China apparently considers it to be almost inconceivable that the PRC would not 
make that same distinction in any future international armed conflict in which 
it might be involved. Miller, The Law of War, 238 and 243. 

334 See text in connection with notes 161 and 162 supra. 



178 

rean and Chinese, used the prisoner-of-war camps as a second battle- 
front. 335 The incidents which occurred in the prisoner-of-war camps 
there 336 demonstrated that where ideology is concerned, and where 
there is a major schism within the prisoner-of-war group itself, segre- 
gation by political opinion may be an absolute requirement in order to 
ensure the safety of many of the prisoners of war. 337 Once again, it 
is necessary to state that there is no valid objection to this procedure 
as long as there is, nevertheless, compliance with the provisions of the 
third paragraph of Article 22 and as long as there is no discrimina- 
tion in the treatment received by the individuals confined in different 
camps or compounds. 

b. WOMEN PRISONERS OF WAR 

References to sex generally or to women specifically will be found 
in nine different provisions of the Convention. The provisions refer- 
ring to women specifically have two basic aims: (1) to guarantee to 
women prisoners of war treatment as favorable as that accorded to 
male prisoners of war; and (2) to afford them protection from sexual 
molestation to the maximum extent possible. 338 

During World War I comparatively few women participated as 
members of the armed forces in capacities which made becoming a 
prisoner of war a foreseeable possibility. Accordingly, it is under- 
standable that Article 3 of the 1929 Convention, containing the only 
reference in that Convention to women, provided merely that they 
should be treated "with all consideration due to their sex." The situa- 
tion changed radically during World War II with large numbers of 
women serving in the armed forces and in the resistance movements 
of many belligerents and in many capacities, including combat. 339 It 
is not surprising, therefore, that the 1947 Conference of Government 
Experts proposed that to the clause quoted above there should be added 
the provision "and their treatment shall in no case be inferior to 
that accorded to men." 340 Prior to the 1948 Stockholm Conference the 
ICRC made some editorial changes (which included making the pro- 



:w5 UNC, Communist War, passim. The extract of this study which was pub- 
lished in 28 Dept. State Bull. 273 covers this subject. 
33G See Hermes, Truce Tent, ch. XI (pp. 233-62). 

337 Ibid., 260. The United States Army now officially takes the position that un- 
der Article 16 prisoners of war may legally be segregated for the purpose of the 
maintenance of order. U.S. Manual para. 92b. Concerning the problem of the 
maintenance of order generally, see Harvey, Control, passim. 

338 Pictet, Commentary 146-47. The second paragraph of Article 27 of the 
Fourth (Civilian) Convention accomplishes this much more succinctly than does 
the Third (Prisoner-of-War) Convention, specifically providing that "[w]omen 
shall be especially protected against any attack on their honor, in particular 
against rape, enforced prostitution, or any form of indecent assault." 

330 See, e.g., the comment at p. 66 supra. 
3 *° 1947 GE Report 119. 



179 

vision affirmative instead of negative), 341 and the provision as so en- 
larged became the second paragraph of Article 14 of the 1949 Con- 
vention. It is the basic provision concerning the rights of women who 
become prisoners of war. It states that " [w] omen shall be treated with 
all the regard due to their sex and shall in all cases benefit by treat- 
ment as favourable as that granted to men." 

Having established that the basic norms for the treatment of wom- 
en prisoners of war were to be regard for their sex and equality with 
the treatment received by men prisoners of war, additional provisions 
for the protection of women prisoners of war were added to the Con- 
vention in a number of areas considered to be particularly sensitive. 342 
Thus, the fourth paragraph of Article 25 provides that if women are 
interned in a prisoner-of-war camp with men, they are to be billeted 
in "separate dormitories" ; 343 and the second paragraph of Article 29, 
after providing that toilet facilities ("conveniences") are to be avail- 
able for the use of prisoners of war day and night, 344 goes on to pro- 
vide that separate such facilities shall be provided for women pris- 
oners of war. 

In the chapter of the Convention dealing with disciplinary and penal 
sanctions, the draftsmen deemed it appropriate to include four sep- 
arate provisions with respect to women prisoners of war. Article 88, 
which is concerned with punishment generally, was amended by the 
1949 Diplomatic Conference, upon the recommendation of the British 
delegation, by the addition of the middle two paragraphs. 345 The sec- 
ond paragraph of Article 88 provides that a woman prisoner of war 
shall not receive a sentence to punishment which is more severe, nor 
be treated more severely while undergoing punishment, than a women 
member of the armed forces of the Detaining Power sentenced for 
th same offense; and the third paragraph of Article 88 repeats the 
same prohibitions but with respect to the standards applied to male 
members of the armed forces of the Detaining Power sentenced for 
the same offense. 

As parallels to the "separate dormitory" provision of the last para- 
graph of Article 25, the last paragraph of Article 97 provides that 



341 Draft Revised Conventions 60. 

342 One of the French delegates at the 1949 Diplomatic Conference thought that 
the second paragraph of Article 14 was sufficiently broad to cover all contingen- 
cies, but he nevertheless concurred in the repetition which resulted from the sub- 
sequent specific provisions. 2A Final Record 489. 

343 Article 75(5) of the 1977 Protocol I uses the phrase "held in quarters sep- 
arated from men's quarters." The Standard Minimum Rules are much more spec- 
ific in this respect, Article 8(a) thereof providing that 'in an institution which 
receives both men and women the whole of the premises allocated to women shall 
be entirely separate." 

344 See note 122 supra. 

34 5 3 Final Record, Annex No. 150; 2A Final Record 489-90, 502, & 311. 



180 

women prisoners of war undergoing disciplinary punishment "shall be 
confined in separate quarters from male prisoners of war," and the 
second paragraph of Article 108 contains the same provision with re- 
spect to women prisoners of war undergoing punishment after con- 
viction of a penal offense. 346 Both of these articles provide further 
that women prisoners of war so confined shall be under the supervision 
of women. 347 

As has already been mentioned, Article 16 requires that in applying 
it provisions against discriminatory treatment, the other provisions of 
the Convention relating to sex should be taken into consideration. 348 
Those which have just been discussed can scarcely be said to provide 
for preferential treatment for women. What they actually require is 
"equal, but separate" treatment. The first paragraph of Article 49, 
which requires the Detaining Power to take sex into account in the 
utilization of the labor of prisoners of war, is probably the sole pro- 
vision to fall within the ambit of the Article 16 exception. Presumably, 
the Detaining Power could favor women prisoners of war in making 
work assignments, excluding them from the more arduous tasks, with- 
out violating the "no discrimination" provision of Article 16. 

All of those who had a hand in the drafting of the 1949 Convention 
did their utmost to provide the special protection which is unquestion- 
ably required for women prisoners of war, both from the representa- 
tives of the Detaining Power and from their male fellow prisoners 
of war. The provisions ultimately incorporated into the Convention 
appear to be adequate. However, once again, their effectiveness will 
depend almost entirely on the will of Detaining Powers to see them 
properly and fully applied. 

c. CIVIL RIGHTS 
It may appear anomalous to speak of the "civil rights" of a prisoner 
of war, particularly in the light of the fact that historically prisoners 
of war could be killed or enslaved — certainly a denial of rights far 
more important than those denominated "civil." Although the princi- 
ple that being a prisoner of war was not a dishonorable state and that 
captives were not held as prisoners of war as punishment, but only 
to prevent their further participation in the armed conflict, had evolved 
in the eighteenth century, 349 the theory that a prisoner of war retained 
"civil rights" is a development which may be ascribed to the twentieth 



346 See note 343 supra. 

347 Article 75(5) of the 1977 Protocol I is quite similar. Compare Article 53 of 
the Standard Minimum Rules. At the prisoner-of-war camp at Qui Nhon, in South 
Vietnam, there were separate facilities for women prisoners of war. Originally, 
women members of the Republic of Vietnam acted as guards, but this was discon- 
tinued when it was found impossible to maintain the morale of the women guards! 

348 See note 283 supra, and the text in connection therewith. 

349 See note 1-18 supra. 



181 

century and, really, to the events of World War I. 880 The 1907 Hague 
Regulations contained no general provision with regard to civil rights. 
Such a provision made its first appearance in the second paragraph 
of Article 3 of the 1929 Convention with the rather broad and ambigu- 
ous statement that "[p]risoners retain their full civil capacity." As 
we shall see in the following discussion of various specific civil rights, 
a number of problems arose in the implementation of this provision. 361 
Some prisoners of war (and some Detaining Powers) were misled into 
assuming that the quoted provision secured for them full civil rights 
in the territory of the Detaining Power. 352 Actually, a prisoner of war 
had, in the territory of the belligerent in which he was held (or in 
the territory of the neutral in which he was interned), only the civil 
rights which that country elected to permit him to exercise. 353 

The preparation of wills, together with their execution and trans- 
mission to the family of the prisoner of war, was probably the most 
important — and the least controversial — civil right possessed by pris- 
oners of war during World War II. The first paragraph of Article 76 
of the 1929 Convention (which derived from Article 19 of the 1907 
Hague Regulations) constituted a specific mandate in this area of civil 
rights. It provided that prisoners of war should receive the same as- 
sistance in drafting their wills as did members of the armed forces 
of the Detaining Power. Moreover, the second paragraph of Article 41 
provided for assistance in their authentication; and the first para- 



350 See, e.g., Article 93, Agreement between the United States of America and 
Germany concerning Prisoners of War, Sanitary Personnel, and Civilians (1918). 
Pictet refers to Article 72 of Lieber's Code as part of the history of the evolution 
of prisoner-of-war civil rights; but this merely protected a prisoner of war's per- 
sonal property and money and is analogous to various provisions of Article 18 of 
the 1949 Convention, and not to the third paragraph of Article 14 thereof, the 
major provision with which we will here be concerned. Pictet, Commentary 148. 
[This portion of the Commentary is apparently a redraft of Preux, Le probleme 
de la capacite civile des prisonniers de guerre . . ., 35 R.l.C.R. 925.] 

351 In 1939 a lengthy article-by-article review of the 1929 Convention by Radu 
Meitani, a Roumanian, entitled Le regime des prisonniers de guerre (Regime) 
appeared in three parts in the Revue internationale francaise du droit des gens. 
It contained a discussion of the second paragraph of Article 3 of that Convention 
which could have been helpful had there been an opportunity for the study to be- 
come more universally known. 

352 1947 QE Report 119-20. Under the laws of some Detaining Powers, prison- 
ers of war were apparently placed on a par with "any ordinary resident." Mc- 
Nair, Legal Effects 93-94. The more general rule is that a prisoner of war will 
not be considered a "resident" of the country in whose territory he is held in 
custody. Pictet, Commentary 149. 

353 It can, of course, be argued that it would have been inappropriate, and 
could not have been intended, to secure for a prisoner of war in an international 
agreement the rights that he would retain in his own country, certainly a matter 
for domestic law only. 2A Final Record 248. However, it is equally clear that 
there was no intent to give prisoners of war "full civil status" under the laws of 
the Detaining Power. 



182 

graph of Article 41 provided for the furnishing of facilities for the 
transmission of these documents to the home of the prisoner of war. 

Another legal document which ranked with the will in its frequent 
importance to the prisoner of war and to his family was the power 
of attorney. Because of this importance, the power of attorney was 
specifically mentioned in the first paragraph of Article 41 of the 1929 
Convention, along with wills. Apart from these two, the phrase "in- 
struments, papers or documents" was used to cover the whole gamut 
of legal documents which the prisoner of war might find it necessary 
to execute in his own or in his family's best interest. Needless to say, 
the Protecting Powers and the ICRC were very frequently called upon 
to ensure the delivery to the prisoner of war, the execution by him, 
and the return to his family, of these various documents, each of which 
was undoubtedly of major importance to the individual prisoner of 
war and to the family concerned. 354 Normally, of course, a Detaining 
Power will have nothing to gain by denying assistance to the prisoner 
of war in the execution of any legal document and its transmission 
back to his family, as it will rarely have any impact within the terri- 
tory of the Detaining Power. However, two comparatively minor 
problems in this regard did arise in Germany (and probably else- 
where) during World War II. The first of these problems was how 
to meet any legal fees or expenses (for example, fees for the services 
of notaries and for prothonotarial certificates) which might arise in 
connection with the legal problems of the individual prisoner of war. 
The German solution to this problem was that if the prisoner of war 
had no funds, payment would be made from canteen funds or prisoner- 
of-war funds. 355 The second problem was with respect to the work 
time lost by prisoners of war, who were at first permitted to leave their 
work detachments in order to have consultations on personal problems 
with the legal adviser of the prisoners' representative. The German 
solution to this problem was to permit the legal adviser to make occa- 
sional visits to the work detachments ; and to require that all such con- 
sultations take place during "free time." 356 No objection can be seen 
to either of these decisions. 

The area of civil rights in which problems apparently most fre- 
quently arose during World War II was, strangely, that of marriage. 
The position has been advanced, and appears to be correct, that a 
Detaining Power is free to permit or to prohibit marriage by a pris- 



354 Janner, Puissance protectrice 55; 1 ICRC Report 295; Rich, Brief History 
488. 

355 German Regulations, No. 23, para. 293. 

356 ibid., No. 43, para. 798. 



183 

oner of war. 357 Many Detaining Powers prohibited such marriages. 358 
However, a number of Detaining Powers permitted a prisoner of war 
to marry by proxy if the other party to the marriage resided in the 
territory of the Power of Origin of the prisoner of war. 359 Of course, 
this could only be done if the laws of the Power of Origin permitted 
proxy marriages. 360 

In modern wars Detaining Powers have required prisoners of war 
to perform labor, including services under contract to civilian employ- 
ers. 361 What were the rights of a prisoner of war who was injured, 
perhaps permanently, in an industrial accident? The last paragraph 
of Article 27 of the 1929 Convention made him eligible for ''the enjoy- 
ment of the benefit of the provisions applicable to laborers of the same 
class according to the legislation of the Detaining Poiver" (emphasis 
added) ; and it further provided that if such legislation was inappli- 
cable, the Detaining Power would seek compensatory legislation. 362 
Some belligerents permitted prisoners of war to make a claim against 
the responsible "employer," by way of either workmen's compensation 
or civil suit; 363 however, probably the more general rule precluded 
either type of remedy for the injured prisoner of war. 364 



357 Sereni, Statut juridique 55; Werner, Croix-Rouge 276. 

358 See, e.g., Rich, Brief History 445; and Meitani, Regime 281 & 301. The latter 
stated that in Roumania should a prisoner of war succeed, nevertheless, in getting 
married, the marriage would be valid. 

359 1 ICRC Report, 294; Rich, Brief History 445. See German Regulations, No. 
6, para. 3. For a detailed description of the festivities attendant upon a proxy 
marriage by a German prisoner of war in a camp in the United States, see Hoole, 
And Still We Conquer 48-50. 

360 One commentator is of the opinion that under the second paragraph of Arti- 
cle 3 of the 1929 Convention a Detaining Power could not prevent a prisoner-of- 
war clergyman from celebrating a marriage between two prisoners of war. Sereni, 
Statut juridique 56 n.8. While a Detaining Power might permit such a marriage 
inasmuch as its own nationals are not involved, that it could not prohibit such 
a marriage if so minded appears to be a rather extreme position. 

361 See Chapter III infra. Article 28 of the 1929 Convention specifically contem- 
plated such a possibility. 

362 It should also be noted that Article 71 of the 1929 Convention made work- 
injured prisoners of war eligible for repatriation — unless the injury was volun- 
tary — on the same basis as other seriously sick or seriously wounded prisoners 
of war. 

363 With respect to the rights of prisoners of war in this area, McNair says that 
"if he is allowed by the British Government to enter into a contract of service with 
a farmer, he may recover wages and he may sue. for damages for an injury re- 
sulting from the negligence of his employer." McNair, Legal Effects 93. (If this 
was ever the method by which a prisoner of war came to work for a civilian em- 
ployer, it is not the present method, at least in the United States, where the con- 
tract for prisoner-of-war labor is between the private emnloyer and the govern- 
ment. Lewis & Mewha 108; U.S. Army Regs, paras. 633-50, sec. XI.) 

304 A 1944 opinion of the Judge Advocate Genernl of the United States Army 
held that prisoners of war were not residents of the United States and, therefore, 
were prohibited from having recourse to the courts of the United States because 



184 

These were the most prominent areas in which there had been an 
attempt to exercise civil rights, or an actual exercise thereof, during 
World War II. When the Conference of Government Experts met in 
1947, some of the participants supported the inclusion in the Conven- 
tion of a provision clearly specifying that prisoners of war enjoy no 
civil rights in the territory of the Detaining Power. They were dis- 
suaded irom this, and the Conference merely proposed the addition of 
a clause to the provision of the second paragraph of Article 3 of the 
1929 Convention quoted above, which would state : "they may acquire 
and exercise all rights granted them by the DP." 365 This was appar- 
ently felt to be an inadequate solution to the problem by the ICRC, 
which attempted to clarify the redrafted article to indicate beyond 
any question that the "full civil status" which prisoners of war re- 
tained under the Convention was that accorded by the legislation of 
their own country, while at the same time retaining the clause which 
had been proposed by the Government Experts. 366 With slight editing, 
this ICRC draft was approved at Stockholm 367 and became the working 
draft for the 1949 Diplomatic Conference, where it was the subject of 
several rather extended debates. 

When strong objections were voiced at the Diplomatic Conference 
to the provision as redrafted, the representative of the ICRC explained 
that what had been attempted was to draft language which would 
avoid giving prisoners of war the impression (which they had fre- 
quently drawn from the 1929 text) that they had full civil rights in 
the territory of the Detaining Power. 368 This explanation was appar- 
ently considered to be inadequate by the representatives of several 
delegations 369 and, thereafter, the Drafting Committee produced a 
substantially new version of the provision which was accepted, 370 
although not without further debate, 371 and which became the third 
paragraph of Article 14 of the 1949 Convention. It reads: 

Prisoners of war shall retain the full civil capacity which they 



of the provisions of the Trading with the Enemy Act, 40 Stat. 411, 417, as amend- 
ed, 50 U.S.C. App. §76 (1970). SPJGW 1943/19573. However, a 1945 opinion of 
that same office concluded that "although the precedents on the point are not con- 
clusive, it is very probable that the courts would allow a prisoner of war to main- 
tain an action" for injuries sustained because of the negligence of a prisoner-of- 
war labor contractor. SPJGW 1945/1878. This opinion was subsequently reaffirm- 
ed on the basis of the fact that Federal and state workmen's compensation acts 
were, for the most part, inapplicable to prisoners of war. SPJGW 1945/3028. 
See, generally pp. 249-252 infra. 

365 1947 GE Report 119-20. It was also proposed to edit the original clause 
very slightly. 

366 Draft Revised Conventions 60. 

367 Revised Draft Conventions 57. 

368 2A Final Record 248. 
M« Ibid., 249. 

370 ibid., 350. 

"i Ibid., 400 & 403-04. 



185 

enjoyed at the time of their capture. The Detaining Power may 
not restrict the exercise, either within or without its own terri- 
tory, of the rights such capacity confers except in so far as the 
captivity requires. 

The Coordination Committee subsequently recommended the elimi- 
nation of the words "which they enjoyed at the time of their capture," 
stating that its proposal was made in order to permit the exercise of 
their civil rights by prisoners of war who reached their majority while 
in captivity. 37 - The British representative expressed the opinion that 
no Detaining Power would interpret that clause so as to deny their 
civil rights to such prisoners of war. 373 A problem of far greater im- 
portance created by that clause is to find a reason why an international 
humanitarian agreement should restrict the civil rights granted to a 
prisoner of war by his own Power of Origin to those in existence on 
the date of his capture. 374 If, for example, a Power of Origin has no 
law permitting proxy marriages at the time that a prisoner of war is 
captured, there does not appear to be any valid reason why he should 
be denied, by the terms of an international agreement, the benefit of a 
law subsequently enacted by his Power of Origin which permits proxy 
marriages and which, perhaps, is specifically stated to be applicable 
to then prisoners of war, among others. 375 During and after World 
War II the lack of adequate existing legislation relating to the civil- 
rights problems of prisoners of war and their families was a matter of 
major concern in France. 370 Under the clause above referred to, in a 
similar future situation, no corrective legislation enacted by the French 
Parliament would apply to the very persons whom it was desired to 
assist ! 

That the overall Article 14, third paragraph, will clarify the situa- 
tion as it existed under the second paragraph of Article 3 of the 1929 



372 ibid., 400. 

373 Ibid. The ICRC has since conceded that this is one possible interpretation 
of the clause; but has rejected it as "contrary to the spirit of the principle stated 
in the Article." Pictet, Commentary 149. 

374 This was stated to be the meaning of the provision. 2A Final Record 403-04. 

375 In the United States a treaty such as the 1949 Convention is a part of "the 
supreme law of the land." Article VI, United States Constitution. Suppose that, 
after a citizen of the United States is captured, the state in which he has his 
domicile enacts a statute authorizing proxy marriages, something which had pre- 
viously been specifically prohibited. The prisoner of war thereafter marries by 
proxy in accordance with the provisions of the new law and with the permission 
of the Detaining Power. The validity of the marriage would be subject to attack 
as being contrary to the self-executing limitation contained in the third paragraph 
of Article 14, part of the supreme law of the United States. 

376 Sevant, Le droit des prisonniers de guerre; Charriere & Duguet, Traite 
theorique et pratique des Prisonniers de Guerre, Deportcs et Travailleurs en AUe- 
magne en droit francais; and Charon, De la condition du prisonnier de guerre 
francais en Allemagne au regard du droit prive, (cited at Pictet, Commentary 
150 n.l). 



186 

Convention appears doubtful in other respects as well. Prisoners of 
war are stated to have "the full civil capacity which they enjoyed at 
the time of their capture" ; {77 and the Detaining Power may not restrict 
the exercise of those rights, "either within or without its own terri- 
tory . . . except in so far as the captivity requires." A proxy marriage 
certainly does not so conflict with the status of captivity as to "require" 
the Detaining Power to prohibit it. Does this mean that the Detaining 
Power may no longer do so if proxy marriages were permitted by the 
laws of the Power of Origin at the time of capture and even if they are 
prohibited by the laws of the Detaining Power? Suppose that a pris- 
oner of war owns property in the territory of the Detaining Power. 
May he sell that property if the laws of the Power of Origin at the time 
of capture permit him to do so and even if the laws of the Detaining 
Power prohibit such sales? These are but a few of the numerous prob- 
lems which the provisions of the third paragraph of Article 14 raise, 
the answers to which will have to be given at some future date. Far 
fewer difficulties would have been created had the 1949 Diplomatic 
Conference accepted the provision approved at Stockholm 378 without 
the extensive tinkering in which it engaged, the sole effect of which 
was to confuse what had been largely clarified. 

The first paragraph of Article 120 and the first two paragraphs of 
Article 77 of the 1949 Convention are concerned with the drafting, 
execution, and transmission of legal documents, including wills and 
powers of attorney. It will be recalled that the first paragraph of 
Article 76 of the 1929 Convention required the Detaining Power to 
afford the same assistance to prisoners of war in the drafting of wills 
as it did to members of its own armed forces. !7! ' The provisions of the 
1949 Convention adopt a somewhat different approach. While the 
second paragraph of Article 77 again requires the Detaining Power to 
facilitate the preparation and execution of legal documents, it also 
specifically requires the Detaining Power (1) to allow prisoners of war 
to consult a lawyer, 380 and (2) to arrange for the authentication of 



:i ~~ The legislative history of the words "at the time of their capture" as used 
here (and in the third paragraph of Article 22) is rather strange for still another 
reason. The Rapporteur pointed out that the word "capture" had been deleted 
everywhere else "in order to give the Convention the widest scope possible by cover- 
ing members of armed forces taken prisoner on surrender or in other circum- 
stances which cannot, properly speaking, be described as capture." 2B Final Record 
324. (See note 1-133 supra.) The words in the French version of the third para- 
graph of Article 14 [and of the third paragraph of Article 22] were accordingly 
changed to "au moment on ils ont ete faits prisonniers" — but the words "at the 
time of their capture" were left untouched in the English version! 

378 Revised Draft Conventions 57. 

wSee p. 181 supra. 

380 No mention is made as to how this is to be accomplished if there is no pris- 
oner-of-war lawyer available. Under the 1929 provision, a military lawyer of the 
Detaining Power would have had to be made available if this was the procedure 



187 

their signatures. 381 Moreover, the first paragraph of Article 120 pro- 
vides that prisoner-of-war wills be so drafted as to satisfy the require- 
ments of the laws of the Power of Origin, the latter having the obliga- 
tion to inform the Detaining Power of the legal requirements in this 
respect ; the first paragraph of Article 77 requires the Detaining Power 
to provide facilities for the transmission, through the Protecting Pow- 
er or the Central Prisoners of War Agency, of the executed documents ; 
and the first paragraph of Article 120 provides that, at the request 
of the prisoner of war, the will shall be sent to the Protecting Power ; 
and that, upon the death of the prisoner of war, the will shall be sent 
to the Protecting Power and a certified copy to the Central Agency. 
Some degree of improvement may be found in these new provisions 
relating to the preparation, execution, and transmission of legal docu- 
ments. However, in other respects it is very probable that the exercise 
of civil rights by prisoners of war will be even more restricted than 
during World War II, despite the very well intentioned, but badly 
executed, aims of the 1949 Diplomatic Conference. 382 

12. Transfers beween Prisoner-of-War Camps 

It would seem that the transfer of a prisoner of war from one camp 
to another would be a comparatively rare but routine procedure re- 
quiring only passing mention in an international agreement such as 
the 1949 Convention. 383 On the contrary, the draftsmen found it neces- 
sary to deal with the subject in all or part of seven different articles, 
attempting, with considerable success, to cover every aspect of the 
matter in order to provide adequate protection, both physical and 
other, to the prisoner of war at a time when he is removed from that 
which is presumably afforded by a well-organized, permanent camp. 384 

Chapter VIII of Section II of the 1949 Convention, consisting of 
Articles 46, 47, and 48, was given the title 'Transfer of Prisoners of 
War after Their Arrival in Camp." This was done "so as to avoid any 



followed for the Detaining Power's own military personnel. The Detaining Power 
appears to continue to have this obligation. 

381 If only witnesses to the signature are required, no problem arises. However, 
if a document must be notarized, it is extremely unlikely that a prisoner-of-war 
notary will be available and the use of a notary of the Detaining Power, even if 
one is made available by the latter, would very possibly create legal problems con- 
cerning the validity of the document. 

382 Concerning the rights under the 1949 Convention of a prisoner of war injured 
in an industrial accident, see p. 183 supra and pp. 249-252 infra. 

383 The subject was not specifically mentioned in the 1929 Convention. 

384 The events of World War II clearly demonstrated that a "death march" can 
occur on a transfer from one prisoner-of-war camp to another, as well as on the 
original evacuation. See, e.g., I.M.T.F.E. 1047-49; Trial of Baba Masao; and Trial 
of Mackensen. 



188 

confusion with the Articles on evacuation." 385 While the provisions of 
the two sets of articles are, in many respects, substantially parallel, 
those concerned with intercamp transfers include a number of matters 
not covered by those concerned solely with the original evacuation 
from the place of capture. It is with these supplementary provisions 
that we will be primarily concerned here. 386 

The second paragraph of Article 46 contains the basic policy state- 
ment with respect to intercamp transfers and, like the first paragraph 
of Article 20 dealing with evacuations, it is a specific reiteration of the 
fundamental rule expounded in the first paragraph of Article 13 that 
prisoners of war must at all times be humanely treated. Once again, 
as in the first paragraph of Article 20, there is the requirement that 
transfers shall be effected "in conditions not less favourable than those 
under which the forces of the Detaining Power are transferred." Gen- 
erally speaking the Detaining Power realistically should be able to, 
and therefore should, comply with this requirement, and the situation 
would be unlike that frequently presented upon the evacuation from the 
battlefield. 387 Transfers between prisoner-of-war camps will usually 
take place in what one author very aptly calls "the hinterlands" ; 388 
hence the Detaining Power should be able to furnish the same type of 
facilities for such transfers as it uses when moving its own troops in 
the same or similar areas. 389 Moreover, the second paragraph of Ar- 
ticle 46 provides that in camp-to-camp transfers the climate to which 



385 2A Final Record 268 (The Conference of Government Experts had suggested 
the use of the caption "Transfer between Base Camps" (1947 GE Report 164) but 
the ICRC had changed this because the term "base camp" does not appear else- 
where in the Convention. Draft Revised Conventions 79.) General Dillon, a mem- 
ber of the United States Delegation at the 1949 Diplomatic Conference, clearly 
errs when he asserts that Articles 45-47 were designed for the purpose of out- 
lawing, among others, "the horrors of the Death March of Bataan." Dillon, Genesis 
51. As is well known, that was an original evacuation from the battlefield to a 
prisoner-of-war camp, and it would fall within the ambit of Articles 19 and 20. 
See pp. 98-104 supra. The presence of the quoted statement in the Dillon article 
is even less understandable when it is noted that at the Diplomatic Conference 
General Dillon himself stated, in the discussion of Article 38 (now Article 46), 
that "it was important to indicate, not only in the Article itself, but also in the 
Chapter heading, the fact that it dealt with transfers from camp to camp." 2A 
Final Record 269. 

386 This section should, of course, be read in conjunction with section B.l of this 
chapter, pp. 98-104 supra. 

387 See p. 101 supra. 

388 Spaight, Air Power 229. 

389 Of course, as we shall see, sometimes such transfers may be necessitated by 
the approach of battle and once again the Detaining Power may be unable to pro- 
vide the transportation facilities normally used for moving its own troops. But 
even this would not excuse the inhumane methods adopted by the Germans (3 
ICRC Report 88-89; Trial of Mackensen) and Japanese (I.M.T.F.E. 1047-51; 
Trial of Baba Masao) during World War II. 



189 

the prisoners of war are accustomed 590 must be taken into account "and 
the conditions of transfer shall in no case be prejudicial to their 
health." 391 

The third paragraph of Article 46 parallels the provisions of the 
second paragraph of Article 20 relating to evacuations. It requires 
the Detaining Power to provide prisoners of war being transferred 
with an adequate supply of food and drinking water, as well as cloth- 
ing, shelter, 392 and medical attention. 393 And the last sentence of that 
Article requires the Detaining Power to take the precautions necessary 
to ensure the safety of the prisoners of war during the course of the 
transfer, "especially in case of transport by sea or air," 394 and to make 
a roster of all the prisoners of war involved in the transfer, presum- 
ably so that if casualties occur en route it will be possible to identify 
them. As long as States refuse to agree upon a special marking for 
vessels or planes being used for the purpose of transferring prisoners 
of war by sea or by air, 395 it is somewhat difficult to envision exactly 
what precautions can be taken by a Detaining Power to ensure the 
safety of prisoners of war during the course of their transfer. 396 Nev- 
ertheless, it is foreseeable that new techniques will be developed which 



390 Presumably, they are "accustomed" to the climate of their homeland, usually 
that of the Power of Origin, and not to that of the prisoner-of-war camp from 
which they are being transferred. 

391 These two provisions were added to the Working Draft as a result of a pro- 
posal made by the New Zealand representative at the 1949 Diplomatic Conference. 
2A Final Record 268 & 359-60. He undoubtedly had in mind instances, such as 
those mentioned in IM.T.F.E. 1047-51 and Trial of Baba Masao, where prisoners 
of war from temperate climates (British, Australians, and Americans, and, prob- 
ably, New Zealanders), many of them seriously ill, were required to make long 
marches in a tropical climate. 

392 There is no mention of "shelter" in Article 20 except the inference which may 
be drawn from the reference to "transit camps" which appears in the third para- 
graph of Article 20 and the requirements for transit camps set forth in Article 24. 

393 The urgent need for these provisions can easily be found by reference to the 
experiences which occurred during World War II cited in notes 389 and 391, supra. 

.394 During World War II there were several tragic incidents of Japanese vessels 
carrying Allied prisoners of war being torpedoed by American submarines. 12 
Morison, History of United States Naval Operations in World War II 400-01. It 
is estimated that 10,000 prisoners of war lost their lives in this manner. Remarks 
and Proposals 49. 

395 The World War II belligerents would not consider the use of a special mark- 
ing for the vessels being used to transport prisoners of war because of the strong 
likelihood of its misuse. 1947 GE Report 166-68; Remarks and Proposals 50. Such 
a possibility was mentioned at the 1949 Diplomatic Conference but not a single 
delegate spoke in favor of it. 2A Final Record 269-70. 

396 The ICRC would probably interpret this provision to be a general statement 
covering its specific proposal to require "life-boats, life-belts, etc. for transports by 
sea; anti-aircraft protection for those by land." 1947 GE Report 167; Remarks 
and Proposals 49-50. However, for some unknown reason, no reference is made to 
the foregoing in the discussion of the third paragraph of Article 46 which appears 
at Pictet, Commentary 254-55. 



190 

will make it possible for the Detaining Power to afford the prisoners of 
war being transferred the safety which the third paragraph of Article 
46 already requires. 

The first paragraph of Article 46 is of debatable value. It provides 
that before deciding to transfer prisoners of war, the Detaining Power 
should "take into account the interests of the prisoners themselves" ; 
and that particular account should be taken that the transfers do not 
increase the difficulty of repatriation. The first provision is, for all 
practical purposes, meaningless ; 397 and the second provision is almost 
so, given the physical problems which will frequently confront the 
Detaining Power plus the methods of transportation for repatriation 
which are available now as well as those which will undoubtedly be- 
come available in the future. Certainly, during World War II it would 
have made repatriation far less difficult if all Germans and Italian 
prisoners of war held by the United States after their capture in North 
Africa and in Europe had been detained in the United Kingdom or 
on the European continent. However, this was not feasible, primarily 
for logistic reasons but also because of the need for their use in the 
United States as a labor force. Accordingly, they were transferred 
from prisoner-of-war camps in the United Kingdom and on the Con- 
tinent to the United States. 398 It is extremely unlikely that were the 
identical situation to occur again the United States would act any 
differently even in the face of this paragraph of Article 46. It is 
equally unlikely that any other Detaining Power confronted with such 
a situation would act any differently. 399 Geography, the availability 
of the necessary space, logistics, labor requirements, and many other 
factors will be considered by a Detaining Power in making the decision 
as to whether prisoners of war should be transferred ; and as long as 
the prisoners of war are not thereby deprived of any of the protections 
of the Convention, the fact that they are being moved farther away 



397 Support for this conclusion can be found in the manner in which the provi- 
sion is treated in ibid., 253-54. 

398 The peak number of prisoners of war held within the territory of the con- 
tinental United States was 425,871 in May 1945. Lewis & Mewha 90-91. By June 
1946 all except 162 (who were serving prison sentences for postcapture offenses) 
had been returned to Europe. Ibid., 91, Table 2, n.a. 

399 The movement of all Allied prisoners of war by the Japanese in Borneo from 
Sandakan and Kuching to Ranau (I.M.T.F.E. 1047-49; Trial of Baba Masao) was 
a logical one even though their removal inland from a port undoubtedly would 
have made their repatriation more difficult. An Allied landing was anticipated — 
and did occur. The Japanese army could not be expected to leave these prisoners 
of war in a place where they might well be retaken by their own forces. No De- 
taining Power would do so, even if their removal would inevitably make their ulti- 
mate repatriation more difficult. It was not the fact of their movement, but the 
methods employed in moving these prisoners of war, which were found to have 
violated the law of war. 



191 

from their homeland, and perhaps from airfields or ports, will make 
little difference. 400 

It will be recalled that the second paragraph of Article 19 provides 
that wounded and sick prisoners of war may be temporarily retained 
in the combat zone, despite its inherent dangers, if evacuation would 
constitute an even greater risk to their well-being. 401 The first para- 
graph of Article 47 contains a prohibition against the transfer of such 
prisoners of war if their recovery will be impeded as a result, "unless 
their safety imperatively demands it." 402 The transfer of seriously 
wounded and seriously sick prisoners of war whose recovery would 
be adversely affected by the move would be justified if, for example, 
they were in an installation located in an area which, because of mili- 
tary developments, had become subject to bombardment; it would not 
be justified merely because of the impending likelihood of its being 
overrun by enemy infantry. Moreover, the second paragraph of Article 
47 carries this matter a step further, prohibiting the transfer of all 
prisoners of war from a camp which is threatened by the approach 
of the combat zone, unless such transfer can be safely accomplished 
under "adequate conditions" — which must be intended to mean under 
the conditions set forth in the last two paragraphs of Article 46 ; with 
an escape clause which permits their movement if "they are exposed 
to greater risks by remaining on the spot than by being transferred" 403 
— a decision which the Detaining Power will make unilaterally and 



400 Suppose that during World War II there had been 100,000 German prisoners 
of war in camps in the United Kingdom which had been built to accommodate 
25,000 — and the necessary additional space was just not available; while in the 
United States, prisoner-of-war camps, west of the Rocky Mountains, built to ac- 
commodate 100,000 prisoners of war, were almost empty. Wouldn't the surplus 
75,000 German prisoners of war in the United Kingdom have been better off overall 
if they were transferred to the camps in the United States even if this meant that 
when repatriation ultimately occurred they would be some 4,000 miles further 
away from Germany? 

401 See pp. 99-100 supra. 

402 In Article 25 of the 1929 Convention the escape clause was ''unless the course 
of military operations demands it." Obviously, the standard of that clause has been 
changed from one catering to the needs of the Detaining Power to one for the 
greater protection of the prisoners of war. 

403 It will be noted that under the second paragraph of Article 19 wounded and 
sick prisoners of war may only be retained in the combat zone if they would run 
greater risks by being evacuated ; while under the second paragraph of Article 47 
prisoners of war may only be transferred from camp to camp if they would run 
greater risks by remaining on the spot. This seeming inconsistency is, in fact, 
logical. In the first instance, the tendency of the troops of the Capturing Power 
would be to care little if the newly captured prisoners of war were kept in the 
combat zone and thus continued to be exposed to the dangers of that area; in the 
second instance, the tendency of the Detaining Power would be to desire to move 
the prisoners of war in order to overcome the possibility of their rescue by their 
own or allied armed forces. In each case, the provision of the Convention is directed 
against the natural tendency of the Detaining Power or its agents. 



192 

which will, of course, be based wholly upon subjective considerations. 
Most camp-to-camp transfers will be made in the self-interests of 
the Detaining Power. Thus, while the movement of a proportion of 
the prisoners of war from an overcrowded camp to one which is less 
crowded, or which, perhaps, is just being opened, will undoubtedly 
improve the lot of the prisoners of war, in most cases it will be done 
by the Detaining Power not for this reason but because it will ease 
logistic problems, or move prisoner-of-war labor to an area where it is 
more urgently needed, or because of the danger of losing control over 
an overcrowded prisoner-of-war camp. 404 Similarly, while the transfer 
of prisoners of war from one camp to another because of the approach 
of the combat zone will usually mean that they are being moved from 
a place where they may suffer some harm to a place of comparative 
safety, it is an action which will be taken by the Detaining Power 
basically in its own interest in order to prevent escape or release. The 
Detaining Power is thus given the choice: transfer the prisoners of 
war under conditions which will ensure their safety and well-being; 
if that is not possible, do not move them, even is the possibility exists 
of the camp being overrun by the enemy. During World War II several 
Detaining Powers elected to move the prisoners of war in order to 
prevent their rescue, but moved them under conditions which were so 
horrendous that they cost the lives of a large proportion of the pris- 
oners of war who were moved. 405 Article 47 was drafted and included 
in the Convention in order to codify the requirements with which the 
Detaining Power must be able to comply if it proposes to move pris- 
oners of war so as to prevent their being retaken by forces friendly 
to them. The provisions are clear even with the "escape clause" which 
is subject to the unilateral determination of the Detaining Power. If 
the Detaining Power elects to transfer the prisoners of war when it 
is, or should be, obvious that adequate supplies of food, water, proper 
clothing, etc., are not available, and, as a result, the prisoners of war 
are adversely affected by the move, the Detaining Power's decision 
violated Article 47 and the individuals responsible for making that 
decision and for carrying it out would be subject to trial, conviction, 
and punishment. 406 



404 The United Nations Command discovered the importance of this latter reason 
for transferring prisoners of war during hostilities in Korea (1950-53). Hermes, 
Truce Tent 255 et seq. 

405 See notes 389 and 391 supra. Thus, the I.M.T.F.E. found that "less than one- 
third of the prisoners of war who began these marches at Sandakan ever reached 
Ranau." I.M.T.F.E. 1048. 

406 In interpreting- these provisions of Article 47, one must not lose sight of the 
provisions of the first paragraph of Article 23, which contains the flat statement 
that "[n]o prisoner of war may at any time be . . . detained in areas where he may 
be exposed to the fire of the combat zone." (Emphasis added.) The Detaining 
Power which elects to transfer prisoners of war as the combat zone draws close to 



193 

The other provisions of the Convention relating to transfers from 
one prisoner-of-war camp to another are, for the most part, adminis- 
trative in nature, being directed toward maintaining the morale of 
the prisoner of war rather than his life and continued well-being. 
Thus, the first paragraph of Article 48 407 requires that the Detaining 
Power give the prisoners of war sufficient advance information con- 
cerning an impending transfer 408 to enable them to pack their belong- 
ings and to send their new address to their families; 409 the second 
paragraph of Article 48 authorizes the prisoners of war to take with 
them their personal effects, as well as "correspondence and parcels 
which have arrived for them," 410 limited to what each can carry, with 
a 25-kilogram (roughly 55 pounds) maximum; the third paragraph 
of Article 48 imposes upon the Detaining Power the obligation to ar- 
range for the prompt forwarding of mail and parcels arriving at the 
former camp after the transfer ; and also provides that the camp com- 
mander and the prisoners' representative 411 shall agree on the method 
for the delivery to the transferred prisoners of war of "community 
property" (such as collective relief shipments) as well as personal 
effects left at the former camp because of the 25-kilogram weight 
limit ; the fifth paragraph of Article 81 provides that if the prisoners' 
representative is himself transferred, he must be allowed a reasonable 
time in which to orient his successor; and the third paragraph of 



the camps in which they are confined might well claim that to have left them in 
their original camps would have been to subject them to the hazards of the combat 
zone and would have been a direct violation of the first paragraph of Article 23, 
even though in making the transfer it could not fully comply with the provisions 
of Articles 46 and 47; and that it chose the course of action which, in its judgment, 
was the lesser of two evils. 

407 Article 48 of the 1949 Convention is basically an edited version of Article 26 
of the 1929 Convention. 

408 Of course, if the transfer is being made under the emergency provisions of 
the second paragraph of Article 47, this might not be possible. 

409 Article 70 also specifies that when a prisoner of war is transferred to another 
camp he must be given the opportunity to send a Capture Card (Annex IVB) to 
his family and to the Central Prisoner of War Agency; and the fifth paragraph of 
Article 122 places certain duties in this regard upon the Information Bureaux. 

410 This would appear to mean any correspondence and parcels awaiting dis- 
tribution and which are distributed immediately prior to departure. If these items 
have been received at an earlier date, and have been distributed and opened, they 
have become merged in the general category of "personal effects." (In fact, it is 
somewhat difficult to determine why any such special mention was considered 
necessary.) 

411 Concerning these latter individuals, see pp. 293-307 infra. 



194 

Article 65 provides that upon transfer the personal financial account 412 
of each prisoner of war is to follow him. 

It can readily be seen that a number of humanitarian provisions 
have been included in the 1949 Convention which clearly establish the 
responsibilities of the Detaining Power and the rights of the prisoners 
of war in connection with the transfer of the latter from one prisoner- 
of-war camp to another, whatever the reason for such transfer may 
be. 413 

13. Financial Resources 

Unlikely as it may seem, a prisoner of war has a number of sources 
of personal funds and there are a great many provisions of the Con- 
vention which are concerned with this subject. Inasmuch as few De- 
taining Powers will allow a prisoner of war to retain or to receive 
cash, an important element of all escape attempts, the financial assets 
of each prisoner of war will be represented by book credits. We shall 
examine here the sources of these credits, the extent to which and the 
manner in which the prisoner of war may use them, and their ultimate 
disposition upon the termination of the individual's status as a pris- 
oner of war. 

Article 64 requires the Detaining Power to maintain a separate 
financial account for each prisoner of war consisting of the following 
items : 
Credits 

Sums taken on capture : 

In currency of the Detaining Power ; 

In other currencies but converted at his request into the cur- 
rency of the Detaining Power ; 
Advances of pay ; 
Working pay ; 
Amounts derived from any other source. 



412 See pp. 209-211 infra. It will be noted that there is no specific provision for 
the transfer of the proporti&nate shares of canteen profits — unless these, can be 
considered to fall within the category of "community property." The ICRC appar- 
ently believes that they do (Pictet, Commentary 258) , although at no time was any 
mention made of them in the discussion of Article 48 (then Article 40) at the 1949 
Diplomatic Conference. For the United States practice during World War II, see 
note 170, supra. 

413 The last sentence of Article 48 provides that the costs of the transfers shall 
be borne by the Detaining Power. This was merely a retention of the equally use- 
less provision of the last sentence of Article 26 of the 1929 Convention. Apart from 
the fact that Article 15 makes the Detaining Power responsible for all of the ex- 
penses of maintaining prisoners of war, it is inconceivable that any Power of 
Origin could ever be prevailed upon to meet the expenses of a transfer of prisoners 
of war by the Detaining Power from one camp to another, an action which, as has 
already been noted, will most usually be accomplished by the Detaining Power in 
its own interests. See p. 192 supra. 



195 

Debits 

Payments made to him ; 414 
Payments made on his behalf ; 
Sums transferred at his request. 
Each of the foregoing items is based upon substantive provisions 
appearing elsewhere in the Convention. 
a. CREDITS 

(1). Sums Taken on Capture 

It will be recalled that the fourth paragraph of Article 18 provides 
that when money in the currency of the Detaining Power is taken from 
a prisoner of war upon capture, it will be credited to his personal 
account. 415 When money so taken is not in the currency of the Detain- 
ing Power, the prisoner of war has a choice between two alternatives : 
under the fourth paragraph of Article 18 he may request that it be 
converted into the currency of the Detaining Power and credited to 
his personal account; 416 if he elects not to do so, then, under the last 
paragraph of Articule 18, it will be retained "in [its] initial shape" by 
the Detaining Power, together with the other articles of value which 
have been taken from the prisoner of war for reasons of security. 411 

One other aspect of the problem of the possession of actual cash by 
prisoners of war must be mentioned at this point. It has been stated 
above that no Detaining Power can be expected to allow a prisoner of 
war to retain or to receive cash, primarily because of its importance in 
escape attempts. The first paragraph of Article 24 of the 1929 Con- 
vention provided that the maximum amount of cash ("ready money") 
that a prisoner of war might have in his possession would be deter- 
mined by agreement between the belligerents. Few such agreements 
were reached during World War II, 418 and other restrictive measures, 
such as the issuance by the Detaining Power of special token money 



414 The second paragraph of Article 64 refers to "payments made to the prisoner 
[of war] in cash." However, as we shall see, the likelihood of any Detaining Power 
permitting such payments is rather remote. 

415 See pp. 115-116 supra. 

416 p or S ome inexplicable reason the early conferences redrafting the Conven- 
tion thought it necessary to repeat in the section dealing with financial resources 
the foregoing provisions of the fourth paragraph of Article 18. Despite the close 
review of all of the relevant articles by a special "Sub-Committee of Financial 
Experts of Committee II" (2A Final Record 529-58), these totally redundant pro- 
visions were perpetuated by the complete acceptance of what is now Article 59 — 
which states in two fairly lengthy paragraphs what is stated in the last sentence 
of the fourth paragraph of Article 18. 

417 "In [its] initial shape" obviously means that the actual currency itself will 
be placed in safekeeping along with other articles of value taken from the prisoner 
of war and impounded because they might be useful to a prisoner of war in an 
escape attempt. 

418 1 ICRC Report 282. Italy and the United States agreed that prisoners of war 
would not be allowed to have any "negotiable money," but only the Detaining 
Power's special monetary substitute. [1942] 3 For. Rel. U.S., Europe at 25 & 30. 



196 

for prisoners of war (scrip, canteen coupons, etc.), frequently negoti- 
able at only the prisoner-of-war camp of issue, were taken by Detain- 
ing Powers in order to prevent prisoners of war from having cash in 
their possession which might facilitate escape. 419 The first paragraph 
of Article 58 of the 1949 Convention modified its predecessor by pro- 
viding that the maximum amount of money "in cash or in any similar 
form" (emphasis added) that a prisoner of war may have in his pos- 
session shall be determined, not by agreement between the belligerents, 
but by agreement between the Detaining Power and the Protecting 
Power, with the right in the Detaining Power to establish a maximum 
amount until an agreement covering the subject had been reached. 420 
Thus, this provision legalizes the use of special "prisoner-of-war 
money," the use of which had not previously been specifically author- 
ized, even though it had rarely been disputed ; authorizes the Detain- 
ing Power to establish unilaterally a temporary maximum amount of 
money, actual or special, which a prisoner of war will be entitled to 
have in his possession in the prisoner-of-war camp; and substitutes 
the Protecting Power for the Power of Origin as the other party to 
the permanent agreement, with the Detaining Power setting the maxi- 
mum amount which a prisoner of war will be authorized to have in 
his possession. While this last modification may result in more agree- 
ments on the subject in any future international armed conflict than 
were reached in past conflicts, it is still extremely unlikely that any 
Detaining Power will agree to permit prisoners of war to retain in 
their possession any actual cash, particularly in the currency of the 
Detaining Power. 

Another new provision of the first paragraph of Article 58 is also 
worthy of note. The United Kingdom delegation thought it appropri- 
ate to permit a Detaining Power to confiscate any money in excess of 
the specified maximum found in the possession of prisoners of war 
and, accordingly, proposed that the wording of the draft provision be 
amended to read that " [a] ny amount in excess [of the permitted maxi- 
mum], which was properly in their possession" (emphasis added) 
would be credited to their personal accounts. 421 Obviously, excess 
amounts which are not properly in their possession will be forfeited 



419 McKnight, POW Employment 62; Kisch, War-prisoner money 452 & 455; 
Rundell, Paying the POW 123; 1 ICRC Report 288. Substantially the same pro- 
cedure had been followed during World War I. Belfield, Treatment 144. 

420 The authorization for the Detaining Power to set a temporary maximum 
(which may become semipermanent, or even permanent, if difficulty is encountered 
in reaching an agreement with the Protecting Power) necessarily implies that 
some maximum amount will be set, even though it may well be limited to special 
prisoner-of-war money. 

421 2A Final Record 475. Of course, once again conversions of currency other 
than that of the Detaining Power taken from a prisoner of war when properly in 
his possession will be made only upon his request. 



197 

and will not be credited to their accounts. This is the type of provision 
which this author has found to be lacking in the fourth paragraph of 
Article 18. 422 

(2). Advances of Pay 

It has long been the custom for the Detaining Power to make ad- 
vances to officer prisoners of war on account of their pay so that they 
would have funds with which to purchase tobacco, toilet articles, etc., 
beyond that which might be issued to them or which might reach them 
in relief parcels. 423 Article 17 of the 1907 Hague Regulations provided 
that officers would receive the same pay as officers of equivalent rank 
in the armed forces of the Detaining Power, the amount so advanced 
to be ultimately refunded by the Power of Origin. 424 Article 23 of the 
1929 Convention had a somewhat similar provision but with the pro- 
viso that in no case would the pay received exceed the pay to which 
they were entitled from the Power of Origin. 4 - 5 Once again, specific 
provision was made for reimbursement by the Power of Origin at the 
end of hostilities. 426 

Apparently, these provisions of the 1929 Convention worked no 
more effectively during World War II than their predecessors had 



422 See pp. 115-116 supra. It is somewhat difficult to conceive of circumstances 
under which the possession of an excess amount of money by a prisoner of war in 
a prisoner-of-war camp would ever be "proper" — unless he can show that he had 
it at the time of capture and no one from the Detaining Power had ever searched 
him or even asked for the surrender of cash (or unless the Detaining Power is 
willing to accept the frequently advanced claim that it was won by gambling with 
other prisoners of war) . 

423 This was probably a holdover from the days when officers, while awaiting 
exchange, were paroled locally and had the obligation to arrange for their own 
board and lodging and to pay for it. Concerning exchange and parole, see pp. 397- 
402 infra. 

424 During World War I Germany did not pay British officers who were prisoners 
of war despite this provision, so the British reciprocated by putting German officer- 
prisoners of war on special rates. United Kingdom, Foreign Office, The Treatment 
of Prisoners of War in England and Germany during the First Eight Months of 
the War 12-13. At a later date, when the Germans proposed that both sides should 
comply with the provision, the British military authorities would not agree — not 
only because they had learned that there was practically nothing that a British 
prisoner of war could buy in Germany, but also because whatever he was paid by 
the Detaining Power was deducted from the amount paid to his family and this 
could have had serious consequences. Belfield, Treatment 146. 

425 After the British experiences of World War I (note 424 supra), it is sur- 
prising that this was the only relevant change in the provision. 

426 One very important, and needed, addition was a provision for the fixing of 
the rate of exchange by agreement between the belligerents with a proviso that, 
absent such an agreement, the rate in effect at the opening of hostilities would be 
used. A number of agreements were reached on this subject. 1 ICRC Report 283- 
84. Nevertheless, problems on rates of exchange did arise. Ibid., 284. 



198 

worked during World War I. 427 As a result, the preliminary confer- 
ences recommended, and the 1949 Diplomatic Conference adopted, 
what is now Article 60, containing a number of major changes in the 
basic approach to the problem. These include (1) a provision for 
advances of pay to enlisted men (other ranks) as well as to officers; 
(2) elimination of the practice of tying the amount of the advance 
of pay to the pay scale of the armed forces of either the Detaining 
Power or the Power of Origin; (3) specifying exactly what the 
advance in pay will be for each rank from private to general; (4) 
using the value of the Swiss franc 428 as the common denominator 
with each Detaining Power converting the amount of the advance in 
pay specified in Swiss francs into an equivalent amount in its own 
currency based on the rate of exchange; 429 and (5) providing a meth- 
od by which the Detaining Power may institute a specific temporary 
system of advances in pay pending the conclusion of a special agree- 
ment with the Power of Origin. 430 

The first paragraph of Article 60 divides all military ranks into five 
categories and specifies the monthly advance in pay each category is 
to receive, the range being from 8 Swiss francs for Category I ("Pris- 
oners ranking below sergeants") to 75 Swiss francs for Category V 



427 A survey made by the United States in November 1945 disclosed that there 
had apparently been no national policy in Germany and that advances of pay were 
different in amount in almost every prisoner-of-war camp. American Prisoners of 
War 19, 28, 60, 71, 79, 90, & 105. The United States, on its part, gave all enlisted 
prisoners of war canteen coupon books worth $3 every month as a gratuity in order 
to enable them to make purchases at the camp canteen. Rich, Brief History 437; 
Hoole, And Still We Conquer 36. 

428 This is the Swiss paper franc. As originally drafted, Article 51 (now Article 
60) provided for the use of the Swiss gold franc at 203 milligrams of fine gold. As 
a result of the singlehanded campaign of the delegate from the United Kingdom 
(Gardner) in the Financial Sub-Committee, in Committee II, and at the Plenary 
Meeting, the latter finally voted to remove all references to gold from the text of 
the Convention. 2B Final Record 301-02. See note 431a infra. 

429 There is no specification as to how the rate of exchange to be used will be 
determined. It could be the rate of exchange on the date of the commencement of 
hostilities. A more logical, but also more complicated, system would be to use the 
rate available on the Swiss money market at the time each advance of pay is made. 

430 Article 60, fourth paragraph, requires the Detaining Power to advise the 
Protecting Power without delay of the reasons for such action. However, the Pro- 
tecting Power is neither required nor authorized to evaluate or to approve the 
reasons given. 



199 

("General officers or prisoners of equivalent rank"). 431 Although for 
the members of the armed forces of many countries the amounts so 
provided will appear minuscule, for the governments of other coun- 
tries the amounts will appear completely disproportionate to the pay 
scale of their own armed forces, with the advances in pay specified 
in the Convention perhaps sometimes exceeding the full pay for the 
various ranks. 432 This was foreseen, and provision was made in the 
second paragraph of Article 60 for special agreements between the 
belligerents which would modify the "statutory" scale. 433 Moreover, 
pending the reaching of such a special agreement, the third paragraph 
of Article 60 permits the Detaining Power to put into force unilater- 



431 The following table presents a comparison of a number of illustrative ex- 
change values as of 27 July 1949, when the first paragraph of Article 60 was ap- 
proved by the Plenary Meeting of the 1949. Diplomatic Conference, and as of 1 
January 1977: 

Comparative Table of Advances of Pay 



Swiss franc 

1949 

1977' 
British £ 

1949 b 

1977 
French franc 

1949 c 

1977 
Italian lire 

1949 

1977 
United States $ 

1949 

1977 
Notes: 

* Had the Swiss gold franc been retained as the standard, the converted figures 
in the 1977 columns would have been between five and six times larger. 

b While the United Kingdom had not yet converted to the decimal system in 1949, 
it is used here in order to simplify comparisons. 

c This was the "old franc," which was divided by 100 in 1958. 

d These figures can be compared with the $3.00 per month in canteen coupons 
which the United States issued gratuitously to all enlisted prisoners of war during 
World War II. See note 427 supra. 

432 At the time of signing the Convention on 12 August 1949, Portugal made a 
reservation to this provision, stating that it would not bind itself to monthly ad- 
vances in pay in excess of 50 percent of the Portuguese scale of pay. 1 Final 
Record 351. This reservation was not maintained on ratification, 394 U.N.T.S. 257. 

433 An agreement reducing the amount of advances of pay would "adversely 
affect the situation of prisoners of war," and appears to be contrary to the pro- 
visions of the first paragraph of Article 6. However, it is obvious that this is what 
the 1949 Diplomatic Conference intended. 2A Final Record 279, 532-38, passim. 
For a discussion of agreements between belligerents, see pp. 84-86 supra. 



I 


II 


III 


IV 


V 


Private 


Sgt. 


Capt. 


Lt. Col. 


Gen. 


8 


12 


50 


60 


75 


8 


12 


50 


60 


75 


0.50 


0.75 


3.10 


3.75 


4.70 


1.92 


2.88 


12.01 


14.33 


18.02 


425 


640 


2,675 


3,210 


4,040 


16.22 


24.43 


101.39 


121.67 


152.09 


1,145 


1,715 


7,150 


8,580 


10,725 


2,845 


4,268 


17,783 


21,339 


26,674 


2.00* 


3.00 d 


12.50 


15.00 


18.75 


3.27* 


4.91 d 


20.45 


24.54 


30.68 



200 

ally certain specified emergency measures where it would be seriously 
embarrassed because the advances in pay which it would otherwise be 
required to make "would be unduly high compared with the pay for 
the Detaining Power's armed forces," or for any other reason. These 
emergency measures require the Detaining Power to continue to credit 
the individual prisoner-of-war accounts with the amounts specified 
in the first paragraph of Article 60, but permit it to limit temporarily 
the use of these credits by the prisoners of war to amounts considered 
to be "reasonable." 434 However, under the fourth paragraph of Article 
60, the Protecting Power must be advised of the reasons for the lim- 
itations so imposed by the Detaining Power. One further limitation 
is still placed on the Detaining Power's actions in this regard : it may 
not reduce the advance of pay for Category I ("Prisoners ranking 
below sergeants") below that which the members of its own armed 
forces receive. 435 

It has been mentioned above that under both the 1907 Hague Reg- 
ulations and the 1929 Convention, the Detaining Power was to be re- 
imbursed by the Power of Origin at the termination of hostilities for 
the pay advanced to prisoners of war. Article 67 of the 1949 Conven- 
tion adopts a somewhat different approach to the problem. While 
stating affirmatively that advances of pay made by the Detaining Power 
pursuant to Article 60 are made on behalf of the Power of Origin, it 
provides for the negotiation of arrangements between the belligerents 
at the close of hostilities. Moreover, the third paragraph of Article 66 
specifically makes the Power of Origin responsible for settling the 
credit balances due to prisoners of war on their personal accounts 
upon the termination of captivity. As advances of pay are one of the 
numerous different types of items included in those accounts, it is 
unlikely that any of the "arrangements" contemplated by Article 67 
will actually eventuate. 

There is one other aspect of the "pay" of prisoners of war which 
must be mentioned, one which had no precedent in prior conventions 
— "supplementary pay." During World War II it had been necessary 
to take some action to provide financial assistance to enlisted men 
(other ranks) who, as we have seen, did not receive "advances of pay" 
under the 1929 Convention. 430 The 1949 Conference of Government 
Experts proposed that a provision be included in the new convention 
then under consideration which would require the Detaining Power 



434 Unfortunately, no indications are contained in the Article as to the stand- 
ards to be followed in determining what is "reasonable" — a determination which 
will be made unilaterally by the Detaining Power. See p. 288 infra. 

435 Although the wording here is somewhat murky, it was obviously intended to 
prohibit the Detaining Power from reducing advances of pay to prisoners of war 
in Category I below the pay of persons of equivalent status in its own armed 
forces. 

436 Franklin, Protection, Appendix XI, Circular Instruction, para. 15. 



201 

to accept from the Power of Origin lump sums to be credited to the 
accounts of the prisoners of war depending on that country, the same 
amount to be allocated therefrom to all prisoners of the same class. 437 
This proposal was incorporated into the draft convention and, with 
considerable editing, was eventually approved by the 1949 Diplomatic 
Conference as Article 61 of the Convention (despite the fact that the 
new Article 60 now provided for advances of pay for all prisoners of 
war, enlisted as well as commissioned). That Article provides that 
the Detaining Power shall accept sums forwarded by the Power of 
Origin for distribution to prisoners of war as "supplementary pay" 
on the condition that all prisoners of war of the same category shall 
receive the same amount, and on the further condition that all pris- 
oners of war of that category shall share in the distribution. The sup- 
plementary pay is to be credited to the individual prisoner-of-war 
accounts as quickly as possible and is not to relieve the Detaining 
Power from any obligation to make advances of pay. While the neces- 
sity for such a provision has been greatly reduced by the fact that 
under the first paragraph of Article 60 all prisoners of war are now 
entitled to advances of pay, the provision may prove of value when 
a Detaining Power avails itself of the privilege contained in the third 
paragraph of Article 60, discussed immediately above, and limits the 
amount of advances of pay made available for prisoner-of-war use. 

(3). Working Pay 

In the section of the 1949 Convention which is concerned with the 
labor of prisoners of war, the first paragraph of Article 54 states 
merely that the working pay shall be fixed in accordance with the 
provisions of Article 62. 438 This latter Article makes several major 
changes in the prior practice with respect to the matter of "working 
pay," 439 that is, the amount which the prisoner of war is entitled to 
have credited to his personal account by reason of services actually 
rendered by him. 

The labor of prisoners of war may be utilized by the Detaining 
Power in four different ways : ( 1 ) for the administration and opera- 
tion of the prisoner-of-war camp itself; (2) working for the armed 
forces of the Detaining Power; (3) working for other branches of 
the government of the Detaining Power; and (4) working for private 
persons who contract with the Detaining Power for prisoner-of-war 



«7 1947 GE Report 158. 

438 This is unlike the manner in which the matter of currency in the possession 
of a prisoner of war at the time of capture was dealt with. See note 416 supra. 

439 Actually, Article 62 refers to "working rate of pay" twice and to "working 
pay" four times, while Articles 54 and 64 refer only to "working 1 pay." The term 
"indemnite de travail" is used in the French version of all three of these articles 
and the difference in English appears to be loose draftsmanship, rather than any 
intent to convey two different meanings. 



202 

labor. 440 Under Article 34 of the 1929 Convention it was possible that 
the first category mentioned would receive nothing in the way of 
compensation for services performed 441 and that the other three cate- 
gories would receive varying rates of compensation. The first para- 
graph of Article 62 of the 1949 Convention clearly contemplates a 
single basic rate of working pay for all prisoners of war; and the 
second paragraph of Article 62 specifically provides that working pay 
shall be paid to those prisoners of war engaged in the administration 
and operation of the camp. 

Article 34 of the 1929 Convention provided that prisoners of war 
would be "entitled to wages to be fixed by agreements between the 
belligerents. " During World War II no such agreements were con- 
cluded. 442 The first paragraph of Article 62, the cognate provision of 
the 1949 Convention, provides for "working pay" 443 in an amount to 
be fixed by the Detaining Power, but which may not be less than one- 
fourth of one Swiss franc for a full working day. 444 The amount so 
fixed must be "fair" and the prisoners of war must be informed of it, 
as must the Power of Origin, through the Protecting Power. 

With respect to the establishment by the Detaining Power of a 
"fair working rate of pay," several matters should be noted. First, 



440 F or a complete discussion of the various problems involved with respect to 
prisoner-of-war labor, see Chapter III infra. 

441 The first paragraph of Article 34 of the 1929 Convention specifically so pro- 
vided and few Detaining Powers elected to be more generous than legally re- 
quired. McKnight, POW Employment 61-62; Lewis & Mewha 159. The United 
States did eventually establish certain prisoner-of-war camp jobs as compensable. 
McKnight, POW Employment 62; Lewis & Wewha 78; POW Circular No. 1, para. 
88. 

442 1 ICRC Report 286. Although a number of statements such as that contained 
in the text may be found, and the conclusions of a number of students of the prac- 
tices of the United States during World War II are to the same effect {e.g., Lewis 
& Mewha 77), at least a limited agreement in this respect was reached by Italy 
and the United States in 1942. [1942] 3 For. Rel. U.S., Europe, at 25 & 30. 

443 The word "wages" of the 1929 Convention was intentionally discarded and 
the words "working pay" substituted in order to avoid invidious comparisons be- 
tween civilian wages and the compensation paid to prisoners of war. 2A Final 
Record 280, 539, & 557. 

444 This is, of course, once again, the Swiss paper franc, not the gold franc. 
2B Final Record 302. The inadequacy of the minimum thus set by the first para- 
graph of Article 62 which amounted to approximately 6 cents a day in money of 
the United States in 1949, is illustrated by the fact that over a century ago, in 
1864, during the American Civil War, the Federal Government had set the rate 
of prisoner-of-war pay at 10 cents a day for skilled workers and 5 cents a day 
for the unskilled! Lewis & Mewha 39. During World War II the United States 
paid prisoners of war 80 cents a day as compensation for their labor. Ibid., 77. 
Under the incentive of the piecework system it was possible to increase this to 
$1.20 a day. Ibid., 120. In 1942 the United States proposed, unsuccessfully, that 
the enemy belligerents agree to three Swiss francs a day (then approximately 80 
cents in American money) as the wage to be paid prisoners of war. Rich, Brief 
History 419. 



203 

no basis can be found in the history of the evolution of this provision 
for attempting to determine what is "fair" by comparing the "working 
pay" of prisoners of war with the wages earned by civilian workers. 
There are too many diverse and unequal factors involved ; 445 and the 
extremely nominal minimum set by the first paragraph of Article 62 
would seem to indicate clearly that there was no intention on the part 
of the 1949 Diplomatic Conference to establish any such relationship. 
Second, while there appears to be nothing to preclude a Detaining 
Power from establishing a fair basic "working rate of pay," and then 
providing for amounts in addition thereto for work requiring greater 
skill, or heavier exertion, or greater exposure to danger, or as a pro- 
duction incentive, no authority exists for establishing different work- 
ing rates of pay for prisoners of war of different nationalities who 
have the same competence and are engaged in the same types of 
work. 446 And finally, the rate established as "fair" may not thereafter 
be administratively reduced by having a part of it "retained" by the 
camp administration. The authority for this procedure, which was 
contained in Article 34 of the 1929 Convention, has been intentionally 
deleted from the 1949 Convention. 447 

It should be noted that the 1949 Convention, unlike the second para- 
graph of Article 34 of the 1929 Convention, does not contain any 
provision for agreements between the belligerents with respect to 
working pay. As drafted at Stockholm, there was a fourth paragraph 
to Article 62 which provided that belligerents could, by special agree- 
ment, "change the scale." 448 This was objected to at the 1949 Diplo- 
matic Conference because it was subject to being construed as per- 
mitting agreements lowering the working pay below the specifically 
prescribed minimum ; 449 and if it only meant agreeing to increase the 
working pay, it was unnecessary because this could already be ac- 
complished under the first paragraph of Article 6 — or even unilater- 
ally. As a result of these objections, the proposed fourth paragraph 
was deleted. 450 There is definitely no legal basis by which belligerents 
may agree to reduce the working pay below the Convention minimum 
of one-quarter of a Swiss franc for one full working day. 



445 For some of these differences, see 2A Final Record at 557 ; Mojonny, The 
Labor of Prisoners of War under the Geneva Conventions 24. For a contrary view, 
see Pictet, Commentary 315. 

446 During World War II the Germans habitually paid Soviet prisoners of war 
as little as one-half of the amount paid to prisoners of war of other nationalities. 
Dallin, German Rule 425. Article 16 of the 1949 Convention now specifically pro- 
hibits "adverse distinction based on race, nationality, religious belief or political 
opinions, or any other distinction founded on similar criteria." 

4 *7 1947 GE Report 160. 

448 Revised Draft Conventions 73. 

449 2A Final Record 280 & 541. The ICRC had previously taken the same position. 
Remarks and Proposals 54. 

450 2A Final Record 557. 



204 

Several changes have been embodied in the second paragraph of 
Article 62 of the 1949 Convention with respect to the types of work 
which entitle a prisoner of war to working pay. Of major importance 
is the fact that, while Article 34 of the 1929 Convention specifically 
provided that "prisoners of war shall not receive wages for work 
connected with the administration, management and maintenance of 
[prisoner-of-war] camps," the second paragraph of Article 62 of the 
1949 Convention is equally specific that prisoners of war "permanently 
detailed to duties or to a skilled or semiskilled occupation in connection 
with the administration, installation or maintenance of [prisoner-of- 
war] camps" shall be entitled to working pay. This new Article also 
contains a specific provision under which "prisoners who are required 
to carry out spiritual or medical duties on behalf of their comrades" 
are likewise entitled to working pay. There is nothing in the provision 
to indicate whether the term "prisoners" refers to the nonmedical 
service, but medically trained, personnel of Article 32, or to the re- 
tained medical personnel of Article 33, or to both. Retained personnel 
are not, of course, prisoners of war 451 — and it would undoubtedly be 
attributing to the 1948 Stockholm Conference which drafted this 
clause 452 an unwarranted refinement in the choice of words if we 
assumed that it used the term "prisoners" instead of "prisoners of 
war" because it was referring to retained personnel who technically 
are not prisoners of war. On the other hand. Article 32 refers ex- 
clusively to medical personnel, while the first paragraph of Article 33 
refers to both medical personnel and to chaplains. As the relevant 
portion of the second paragraph of Article 62, quoted immediately 
above, refers to "spiritual or medical duties," there is certainly justi- 
fication for assuming that the "prisoners" of that Article are the 
retained personnel of the first paragraph of Article 33. 453 And, while 
the prisoners' representative and his advisers and assistants are pri- 
marily paid out of canteen funds, if there are no such funds, these 
individuals, too, are entitled to "a fair working rate of pay" from 
the Detaining Power. 454 Finally, although not specifically mentioned 
in Article 62, because enlisted men who are assigned as orderlies in 
officers' camps are, by the second paragraph of Article 44, specifically 
exempted from any other work, and because this is, therefore, a full- 



451 See pp. 70-74 supra. 

452 Revised Draft Conventions 73. 

45:5 This is apparently the conclusion reached by the United States as para. 147a 
of U.S. Army Regs. 633-50 provides for the payment of working retained person- 
nel of the same daily rate of pay as is received by prisoners of war. 

454 If canteen funds are available, the third paragraph of Article 62 provides 
that the prisoners' representative fixes the "scale" of working pay for himself 
and his assistants, subject to approval by the camp commander. 



205 

time job, it appears that they should be entitled to working pay from 
the Detaining Power. 455 

There is one provision of the 1949 Convention which could render 
this entire subject relatively moot. Under the last paragraph of Ar- 
ticle 34 of the 1929 Convention the pay remaining to the credit of a 
prisoner of war in his personal account was to be paid to him upon 
the termination of his captivity. 456 Under the first paragraph of Ar- 
ticle 66 of the 1949 Convention, upon the termination of captivity the 
Detaining Power gives the individual prisoner of war a statement 
showing the entire credit balance due to him. 457 Thereafter, under the 
third paragraph of Article 66, it will be the responsibility of the Pow- 
er of Origin, and not of the Detaining Power, to settle any balance 
of his account which has been certified by the Detaining Power as 
being due to him. Under these circumstances there appears to be 
little reason why a Detaining Power should not be extremely gener- 
ous in establishing its "fair working rate of pay." It can limit the 
amount that a prisoner of war can use in the canteen and it will 
merely be creating a future liability on the part of its enemy! This 
fact may result in the negotiation of agreements between belligerents 
fixing mutually acceptable maximum "working rates of pay," despite 
the lack of a specific provision for such agreements in the 1949 Con- 
vention — agreements which, as has been noted, were not reached under 
the 1929 Convention where there was a specific provision for them. 

(U)- Amounts Derived from Other Sources 
"Supplementary pay" is, of course, one of the "other sources" from 
which a prisoner of war may secure credits to his personal account. 458 
However, whether governments will make such payments for the 
benefit of prisoners of war in future international armed conflicts is 
doubtful in view of the fact that all prisoners of war will be entitled 
to advances of pay and those who work will, in addition, receive work- 
ing pay. Under the circumstances, it is probable that a major source 
of other credits will be pursuant to the first paragraph of Article 63, 
which directs that prisoners of war be permitted to receive remittances 
of money sent to them "individually or collectively." In other words, 
families may send remittances to be credited to the account of the 
individual prisoners of war; or organizations may send lump sums 



455 This was the policy followed by the United States during World War II. 
POW Circular No. 1, para. 85. It is also the present approved policy. U.S. Army 
Regs. 633-50, para. 227b. 

456 In the event of his death it was to be forwarded to his heirs through dip- 
lomatic channels. 

457 This will, of course, include not only his working pay, but all other credits, 
less all debits. 

4 58 See pp. 200-201 supra. 



206 

to be credited, for example, to the accounts of all of the prisoners of 
war from one country at a particular prisoner-of-war camp. 459 

One other substantial source of credits to the personal accounts of 
prisoners of war will be that derived from the repair or manufacture 
of items by them during their off -time. Prisoners of war with unusual 
skills will frequently do repairs during off -hours ; and prisoner-of-war 
artists and artisans will use their unique talents to create salable 
products. 460 Although the commercial aspects of the transactions 
could conceivably be entered into directly between prisoner of war 
and buyer, the merchandising procedure usually followed is that the 
canteen acts as a middleman between the prisoner of war and the 
buyer, who may be another prisoner of war, or a member of the 
armed forces of the Detaining Power, or even a member of the civil- 
ian population. 461 The canteen then turns the funds received for the 
purchase, less a commission, over to the camp administration which 
makes the appropriate credit on the personal accounts of the prison- 
ers of war concerned. 

b. DEBITS 

(1). Payments Made to the Prisoner of War 

The second paragraph of Article 64 refers to "payments made to 
the prisoner [of war] in cash." While, as has been noted, the De- 
taining Power will rarely permit such payments to be made, the pos- 
sibility does exist. Of course, when cash, or scrip money, or a can- 
teen coupon book is issued to the prisoner of war, a debit in the 
appropriate amount will be made on his account. 

There is one particular use of cash which was envisaged by the 
draftsmen of the Convention — for the purchase of "services or com- 
modities" outside of the camp. The second paragraph of Article 58 
provides that where such purchases are permitted, the prisoner of 
war will either make the payment himself or it will be made for him 



459 The possibility of such remittances will, of course, depend largely upon the 
financial condition and exchange regulations of the country of the would-be re- 
mitter. 

4(50 See pp. 236-237 infra. The ingenuity of the prisoner of war in this regard is 
well illustrated by an episode related by a former labor officer for a prisoner-of- 
war camp in England, which included the theft by the prisoners of war of baling 
string, cotton, etc., from the farms on which they worked during the day, the 
manufacture of these items into rope-soled shoes during the evening, and their 
subsequent sale on the same farms. Barker, Behind Barbed Wire 103. 

461 The policy of the United States is to permit sales only through the canteen. 
U.S. Army Regs. 633-50, para. 233. A provision limiting the prisoner of war to 
an hourly rate of compensation which may not exceed the daily rate for paid 
work contained in para. 233f of that Regulation is, perhaps, acceptable for the 
prisoner-of-war tailor or shoemaker, but will be grossly unfair to the artist or 
artisan. 



207 

by the camp administration and charged to his account. 462 The De- 
taining Power is directed to promulgate rules establishing the pro- 
cedure for such transactions. It can be anticipated that the pro- 
cedure preferred by most Detaining Powers, and which will be estab- 
lished by their rules, will be one pursuant to which payments are 
made directly to the person from outside the camp by the camp ad- 
ministration and the amount so advanced is charged to the prisoner 
of war's account. 463 

(2). Payments Made on Behalf of the Prisoner of War 

The second paragraph of Article 63 provides that the credit balance 
of the account of each prisoner of war is at his disposal and that the 
Detaining Power "shall make such payments as are requested." How- 
ever, this seemingly unlimited provision is in fact limited by a clause 
which keeps the use of the credit balance "within the limits fixed by 
the Detaining Power. ,,464 

As we have just seen, the Detaining Power may make payments 
on behalf of a prisoner of war pursuant to the second paragraph of 
Article 58 for the purchase of services or commodities outside of the 
camp, debiting his account by the amount so paid out. Also, if a pris- 
oner of war is without news from home for a lengthy period of time, 
or has an emergency, the second paragraph of Article 71 permits 
him to send a telegram, the charge for which will be debited on 
his account. 465 

(3). Sums Transferred at the Request of the Prisoner of War 

The third paragraph of Article 24 of the 1929 Convention required 
the Detaining Power to grant facilities for the transfer of any cash 
("ready money") taken from a prisoner of war at the time of capture 
and credited to his account or deposited by him in his account "to 
banks or private persons in [his] country of origin." Article 38 of 
that same Convention referred to "consignments of money or valu- 



462 During World War II the British gave prisoners of war sterling cash for 
this purpose, but the general practice was otherwise. 2A Final Record 278. 

463 The provision concerning payments being made by the prisoners of war 
themselves was really added to the text in order to permit the United Kingdom 
to follow its World War II practice if it so desired. Ibid., 278, 531. 

404 This is why the provisions of the third paragraph of Article 66 could make 
many of the rules relating to financial resources meaningless. See p. 205 
supra. The Detaining Power is not concerned with respect to the ultimate size 
of the credit balance as long as its use within the territory of the Detaining Pow- 
er can be restricted; and it need not concern itself that the Power of Origin may 
do the same thing with respect to the accounts of the members of its own armed 
forces who are prisoners of war, inasmuch as the action to be taken by it with 
respect to the credit balances upon their repatriation is a purely domestic matter. 

465 See pp. 151-152 supra. 



208 

ables" which the prisoner of war might send in the mail. 466 However, 
because of the exchange regulations of the various belligerents, very 
few transmittals of money from the territory of a Detaining Power to 
the territory of a Power of Origin actually occurred. 467 

The current provisions relating to this subject are to be found in the 
second and third paragraphs of Article 63 and in Annex V. The second 
paragraph of Article 63 provides that, subject to the Detaining Pow- 
er's financial and monetary restrictions, prisoners of war may have 
payments made abroad, with remittances to dependents given priority. 
Of course, the prisoner of war in any future major international 
armed conflict will once again find his privileges in this regard severe- 
ly limited, if not completely nullified, by the Detaining Power's ex- 
change regulations — which now have the added legitimacy of specific 
mention in the Convention. 

The third paragraph of Article 63 and Annex V (which is incorpo- 
rated by reference in the fourth paragraph of Article 63) set forth 
the procedure by which the prisoner of war, with the consent of the 
Power of Origin, may send remittance to his home country: (1) the 
authorities in the Detaining Power prepare a notification containing 
(a) the identification of each prisoner-of-war payer, (b) the name 
and address of each payee, and (c) the amount to be transmitted, 
stated in the currency of the Detaining Power; (2) the notification 
is signed by each prisoner-of-war payer and countersigned by the 
prisoners' representative ; (3) the camp commander certifies that each 
prisoner-of-war payer has a credit balance adequate to cover the re- 
mittance; (4) each sum to be remitted is deducted from the account 
of the appropriate prisoner of war, the sums so deducted being placed 
by the Detaining Power to the credit of the Power of Origin; and (5) 
the notification is sent by the Detaining Power through the Protecting 
Power to the Power of Origin. The Power of Origin then has the 
internal responsibility of actually making payment to the payee. 468 



466 The Germans did not permit British prisoners of war to mail the currency 
of their country back home during World War II. German Regulations No. 36, 
para. 672. However, American currency taken from American prisoners of war 
at the time of capture could be sent to the United States through the Deutsche 
Bank in Berlin. Ibid., No. 37, para. 697. 

467 1 ICRC Report 290. In May 1944 the United States authorized Italian pris- 
oners of war to transmit up to $100 in any quarter to their families in Italy. 
German prisoners of war never received this authorization. Rich, Brief His- 
tory 440. 

468 If the number of prisoners of war held by both sides is substantially equal, 
the transmittal of funds by prisoners of war could be entirely a paper transaction, 
the debits and credits of the Detaining- Power and of the Power of Origin balancing 
each other out. Of course, this type of situation rarely occurs. 



209 



c. ADMINISTRATIVE PROCEDURES 



In addition to the third paragraph of Article 63 and Annex V set- 
ting forth the detailed procedure for the transmittal of prisoner-of- 
war funds, the Convention contains a number of other administrative 
instructions with respect to the maintenance of the prisoner-of-war 
accounts. 

The basic provision is, of course, Article 64, which establishes the 
accounts themselves and enumerates the several general categories of 
credits and debits. 409 Article 65 provides some of the routine account- 
ing procedures to be followed, all of which are obviously intended to 
protect the prisoner of war by ensuring that he receives all of the 
credits to which he is entitled and that no debit is made without his 
consent. Thus, the first paragraph of Article 65 requires that every 
entry in a prisoner-of-war account must be certified by the signature 
or the initials of the prisoner of war or of the prisoners' representa- 
tive acting on his behalf. The second paragraph of Article 65 requires 
that the Detaining Power afford the prisoner of war the opportunity 
to check his account and to obtain a copy of it. 470 When a prisoner of 
war is transferred from one camp to another, the third paragraph of 
Article 65 provides that his account will likewise be transferred. When 
he is transferred from one Detaining Power to another, he is to be 
given a certificate showing his credit balance; and unconverted cur- 
rency (money taken from him at the time of capture which was not 
in the currency of the first Detaining Power and which he had elected 
not to have converted) is likewise to be transferred. 471 The last para- 
graph of Article 65 contains the rather strange provision that the 
belligerents "may agree to notify each other at specific intervals 
through the Protecting Power, the amount of the accounts of the pris- 



46 9 See pp. 194-195 supra. 

470 The second paragraph of Article 65 also authorizes the representatives of 
the Protecting Power to inspect the accounts when they visit a prisoner-of-war 
camp. Except that they might find generalities (i.e., no credits for advances of 
pay or working pay, no signatures or initials to certify debits, etc.) the inspection 
by the representatives of the Protecting Power will be of value only when it is 
concerned with the complaint of a specific prisoner of war with reference to his 
personal account. 

471 The Detaining Power to which he is transferred will probably allow the pris- 
oner of war to retain the certificate for use under the third paragraph of Article 
66, not allowing him to use the credit balance while in its custody. If the uncon- 
verted money includes any currency of the new Detaining Power, this will now be 
credited to his account in accordance with the provisions of the fourth paragraph 
of Article 18, and the first paragraphs of Articles 58 and 59. This was the pro- 
ceduie followed during World War II. Rich, Brief History 439. 



210 

oners of war." 472 As far as appears, such a notification would merely 
inform the Power of Origin of the amount that its indebtedness 
(under the third paragraph of Article 66) to the members of its armed 
forces who are prisoners of war would have been if the armed con- 
flict had ended on the date to which the amounts of the prisoner-of- 
war accounts were computed. 473 

Finally, the rules for the ultimate closing of the prisoner-of-war 
accounts upon the termination of captivity by release or repatriation 
are set forth in Article 66. The first paragraph of Article 66 requires 
that at such time the Detaining Power give to the prisoner of war a 
certified statement of his account showing the credit balance due 
him ; 474 while the third paragraph of Article 66 places upon the Power 
of Origin the responsibility for actually settling the account. 475 And 



472 It is obvious that this provision is ambiguous. Does it mean the total amount 
due on all prisoner-of-war accounts — or does it mean the amounts due on each 
separate prisoner-of-war account? The original proposal, made by the Canadian 
delegate at the 1949 Diplomatic Conference, used the word "amount." 2A Final 
Record 282. The Sub-Committee of Financial Experts approved this proposal, the 
meaning of which was not explained. Ibid., 546-47. On 29 June 1949 the Sub-Com- 
mittee decided to coordinate the French and English texts to read: "les montants 
figurant aux comptes des prisonniers de guerre [the amounts of accounts of pris- 
oners of war.]" Ibid., 552. Nevertheless, its Report, submitted two days later, on 
1 July 1949 used the words, "the amount of accounts of the prisoners of war" 
(Ibid., 555), and this remained the form in which it was finally adopted. The 
French version continued in the plural, although the word "les montants" did 
somehow become "les releves" in the final version. Presumably, it is the amount 
of each individual account which was intended, but the final English version does 
not specifically so indicate. Of course, inasmuch as this provision requires an 
agreement between the belligerents in order to become effective, the ambiguity 
can be resolved in such an agreement. 

473 The ICRC says that the value of the provision is that it allows the Power 
of Origin to see how the Detaining Power is fulfilling its obligations. Pictet, Com- 
mentary 325-26. As only totals will be given, this appears doubtful. 

474 The second paragraph of Article 119 provides that "on repatriation" im- 
pounded articles of value and unconverted currency will be restored to each pris- 
oner of war and that if this is not done these items will be sent to the Detaining 
Power's Information Bureau. That Bureau, under the last paragraph of Article 
122, has the obligation to send to the Power of Origin "all personal valuables, in- 
cluding sums in currencies other than that of the Detaining Power." Although 
Article 119 refers only to "on repatriation," the last paragraph of Article 122 
refers to prisoners of war who have been "repatriated or released, or who have 
escaped or died." 

475 The 1949 Diplomatic Conference intentionally departed from the prior sys- 
tem under which each prisoner of war was to be given his credit balance in cash 
prior to repatriation. 2A Final Record 568. What the Power of Origin actually 
does in this regard will, of course, be solely a matter of domestic concern. See 
note 464 supra. (At the time of signing the Convention on 12 August 1949, Italy 
made a general reservation to this provision. 1 Final Record, 348. This reserva- 
tion was not maintained en ratification. 120 U.N.T.S. 299.) Soviet International 
Law 432 erroneously states that the balance due each prisoner of war "is handed 
to him when captivity is terminated." 



211 

the second paragraph of Article 66 states that the provisions of the 
article may be varied by agreement "between any two of the Parties 
to the conflict." 476 

In the cases referred to above, of release and repatriation, as well 
as in cases of the termination of the captivity by "escape, death or 
any other means," the Detaining Power is required by the first para- 
graph of Article 66 to send to the Power of Origin, through the Pro- 
tecting Power, lists identifying the prisoners of war concerned and 
certifying the amount of the credit balance of each one. 477 

There remains to be mentioned only one last facet of the financial 
aspects of the life of the prisoner of war — claims. This subject is 
dealt with in Article 68. 478 The second paragraph of Article 68 pro- 
vides that claims for compensation for personal effects, money, or 
valuables taken from the prisoner of war upon capture and "not forth- 
coming on his repatriation" 479 shall be referred to the Power of Ori- 
gin. 480 This same rule applies to items alleged to have been lost due 
to the negligence of the Detaining Power, with the proviso that if it 
is the type of item required for use by the prisoner of war while in 
custody, the Detaining Power must, at its own expense, replace it. 
Finally, once again the Detaining Power must provide the prisonei 
of war with a certified statement containing full information as to 
why the missing items have not been restored to the prisoner of war, 



476 The agreed variations would certainly apply only to the two belligerents 
concerned. This provision clearly removes Article 66 from the purview of the first 
paragraph of Article 6 of the Convention. 

477 It will be noted that the first paragraph of Article 66, the second para- 
graphs of Article 68 and 119, and the last paragraph of Article 122 vary widely as 
to the types of termination of captivity to which reference is made. It is believed 
that this is merely another instance of poor internal coordination and that the 
intent in each instance was to include all relevant cases of the termination of 
captivity, whether by release, repatriation, escape, death, or any other means. 

478 The first paragraph of Article 68 is concerned with claims arising out of 
accidents at work. This subject is discussed in connection with civil rights (see 
p. 183 supra) and with the overall subject of the employment of prisoners of war 
(see pp. 249-252 infra) . 

470 See the comment in note 477 supra. 

480 It must be borne in mind that even though "not forthcoming on his repatria- 
tion," the missing items may eventually reach the prisoner of war. See, e.g., note 
474 supra. For a large-scale analogous program to bring together ex-prisoners of 
war and the items which were left behind at the time of repatriation, see 3 ICRC 
Report 115-16. 



212 



with a copy being forwarded to the Power of Origin through the 
Central Prisoners of War Agency. 481 



481 There is no logic whatsoever to the sudden naming of the Central Prisoners 
of War Agency as the intermediary in this matter, and it is incomprehensible that 
the ICRC representative in Committee II did not point this out. The copy of the 
certificate showing the credit balance, given to the prisoner of war at the same 
time that he receives this certificate, is, pursuant to the first paragraph of Article 
66, sent by the Detaining Power to the Protecting Power for transmission to the 
Power of Origin, as are others (e.g., the first paragraph of Article 62 and the 
third paragraph of Article 63). This entire Article derived from a United King- 
dom proposal (3 Final Record Annex 128, at 75) which contained the reference 
to the Central Agency and, although a number of other changes were made, ap- 
parently no one noted the incongruity of naming the Central Agency to perform 
the function here allocated to it. 



CHAPTER III 
THE EMPLOYMENT OF PRISONERS OF WAR 

A. INTRODUCTORY 

From the days when the Romans first came to appreciate the 
economic value of prisoners of war as a source of labor, and began 
to use them as slaves instead of killing them on the field of battle 1 
until the drafting and adoption by a comparatively large number of 
members of the then family of sovereign States of the Second Hague 
Convention of 1899, no attempt to regulate internationally the use 
of prisoner-of-war labor by the Detaining Power had been success- 
ful. 2 The Regulations attached to that Convention dealt with the sub- 
ject in a single article, as did the Regulations attached to the Fourth 
Hague Convention of 1907 which, with relatively minor exceptions, 
merely repeated the provisions of its predecessor. A somewhat more 
extensive elaboration of the subject was included in the 1929 Con- 
vention ; and, although still far from perfect, the provisions concern- 
ing prisoner-of-war labor in the 1949 Convention certainly constitute 
an enlightened attempt to legislate a fairly comprehensive code gov- 
erning the major problems involved in the employment of prisoners 
of war by the Detaining Power. 3 The purpose of this chapter will be 
to analyze the provisions of that labor code and to suggest not only 
how the draftsmen intended them to be interpreted, but also to at- 
tempt to prognosticate what can be expected in actual implementation 
by Detaining Powers generally in any future major international 
armed conflict. 

B. HISTORICAL 

Before proceeding to a detailed analysis of the labor provisions of 
the 1949 Convention, and how one may anticipate that they will 
operate in time of such armed conflict, it is both pertinent and ap- 
propriate to survey briefly the history of, and the problems encoun- 
tered in, the utilization of prisoner-of-war labor during and since the 



1 See pp. 2-3 supra. 

- Although, as we shall see, the subject of prisoner-of-war labor has been dealt 
with by Article 76 of Lieber's Code, Article 25 of the Declaration of Brussels, and 
in Articles 71-72 of the Oxford Manual of 1880, and while these efforts unques- 
tionably influenced in material degree the decisions subsequently reached at The 
Hague, none of them constituted actual international legislation. 

3 Pictet, Recuel 91. 

213 



214 

American Civil War (1861-65). That period is selected because it 
represents the point at which cartels for the exchange of prisoners 
of war ceased to have any considerable impact and yet belligerents 
were apparently still largely unaware of the tremendous potential of 
the economic asset which was available to them at a time of urgent 
need. 

The American Civil War was the first major conflict involving large 
masses of troops and large numbers of prisoners of war in which 
exchanges were the exception rather than the rule. 4 As a result, both 
sides found themselves encumbered with great masses of prisoners of 
war; but neither side made any substantial use of its large pool of 
manpower, although both suffered from labor shortages. 5 This was 
so despite the fact that Article 76 of Lieber's Code specifically stated 
it to be a rule of international law that prisoners of war "may be 
required to work for the benefit of the captor's government, according 
to their rank and condition"; and despite the valiant efforts of the 
Quartermaster General of the Union army, who sought unsuccessfully, 
although fully supported by Professor Lieber, to overcome the official 
reluctance to use prisoner-of-war labor. The policy of the Federal 
Government was that prisoners of war would be compelled to work 
"only as an instrument of reprisal against some act of the enemy." 6 

It will be recalled that in 1874 an international conference, which 
included representatives from most of the leading European nations, 
met in Brussels "in order to deliberate on the draft of an international 
agreement respecting the laws and customs of war." 7 This conference 
prepared the text which, while never ratified, constituted a major 
step forward in the effort to set down in definitive manner those rules 
of land warfare which could be considered to be part of the customary 
law of nations. It included, in its Article 25, a provision concerning 
prisoner-of-war labor which adopted, but considerably amplified, Lie- 
ber's single sentence on the subject quoted above. The Article con- 
tained in the Declaration was, in turn, subsequently adopted almost 
verbatim in the Oxford Manual in 1880; and it furnished much of 
the material for Article 6 of the 1899 Hague Regulations and for the 
same Article in the 1907 Hague Regulations. 

Despite all of these attempts and eventual successes in the effort 
to codify the law with respect to prisoner-of-war labor, the actual 
utilization of such labor remained negligible during the numerous 



4 See pp. 7-8 supra. 

5 Lewis & Mewha 27 & 41. For a vivid fictional, but factually accurate, picture 
of this waste of manpower in the South, with its resulting evils to the prisoners 
of war themselves, see Kantor, Andersonville. 

fi Lewis & Mewha 37. These same authors state that "in the Civil War both sides 
were crippled by a shortage of manpower, yet both sides overlooked the vast labor 
pool offered by idle prisoners of war." Ibid., 41. 

7 Final Protocol of the Brussels Conference of 1S7U. See p. 8 supra. 



215 

armed conflicts which preceded World War I. This last was really the 
first modern international armed conflict in which there was total 
economic mobilization by the belligerents; and there were more men 
held as prisoners of war and for longer periods of time than during 
any previous conflict. Nevertheless, it was not until 1916 that the 
British War Office could overcome opposition in the United Kingdom 
to the use of prisoner-of-war labor ; 8 and after the entry of the United 
States into that conflict, prisoners of war held by it were not usefully 
employed until the investigation of an attempted mass escape resulted 
in a recommendation for a program of compulsory prisoner-of-war 
labor in part as a means of reducing disciplinary problems. 9 When the 
belligerents eventually did find it essential to make use of the tremen- 
dous prisoner-of-war manpower pools which were so readily available 
to them, the provisions of the 1907 Hague Regulations covering this 
subject proved completely inadequate to solve the numerous problems 
which arose, thereby necessitating the negotiation of a series of bilat- 
eral and multilateral agreements between the various belligerents 
during the course of hostilities. 10 Even so, the Report of the "Com- 
mission on the Responsibility of the Authors of the War and on 
Enforcement of Penalties/' created by the Preliminary Peace Confer- 
ence in January 1919, listed the " [e] mployment of prisoners of war 
on unauthorized works" as one of the offenses which had been com- 
mitted by the Central Powers during the war. 11 

The inadequacies of the 1907 Hague Regulations in this and other 
areas, revealed by the events which had occurred during World War I, 
led to the drafting and ratification of the 1929 Convention. 12 It was 



8 Belfield, Treatment 137. At that same time 75 percent (1,200,000 out of 1,600,- 
000) of the prisoners of war in Germany were already employed. McCarthy, Pris- 
oner of War 141 ; Vizzard, Policy 240. 

9 Lewis & Mewha 57 and source cited therein. This was not the case in France, 
where the American Expeditionary Force had started planning for prisoner-of- 
war utilization even before they were captured, the established policy of that com- 
mand being that all except commissioned officers would be compelled to work. 
Ibid., 59-62. (In Barker, Behind Barbed Wire 97, the present author is credited 
with having stated that the recommendation made in the United States was that 
prisoner-of-war labor be used as a disciplinary measure. Quite the contrary! It 
was recommended as a means of keeping the prisoners of war occupied in order 
to reduce disciplinary problems.) 

10 All of the bilateral and multilaterial agreements cited in note 1-39 supra, had 
provisions concerning prisoner-of-war labor. The 1918 United States-German 
Agreement had a section of 11 articles (41-51) dealing solely with this subject 
For a discussion of the problems which arose with respect to the negotiations of 
these provisions, see Stone, The American-German Conference on Prisoners of 
War, 13 A.J.I.L. 406, 424-28. 

ii 14 A.J.I.L. 95, 115 (1920) ; UNWCC History 35. 

12 The International Law Association's Proposed International Regulations, 
note 1-40 supra, had a number of provisions in its Article 10 regulating prisoner- 
of-war labor. 



216 

this Convention which governed most of the belligerents during the 
course of World War II ; u but once again international legislation 
based on the experience gained during a previous conflict proved in- 
adequate to control the more serious and complicated situations which 
arose during a subsequent period of hostilities. 14 Moreover, the proper 
implementation of any agreement the provisions of which require 
interpretation must obviously depend in large part upon the good faith 
of the parties thereto — and as belligerents in war are, perhaps under- 
standably, not motivated to be unduly generous to their adversaries, 
decisions are sometimes made and policies are sometimes adopted 
which either skirt the bounds of legal propriety or, perhaps, arguably 
exceed such bounds. The utilization of prisoner-of-war labor by the 
Detaining Powers proved no exception to the foregoing. Practically 
all prisoners of war were compelled to work. 15 To this there can be 
basically no objection. But during the course of their employment many 
of the protective provisions of the 1929 Convention (and of the 1907 
Hague Regulations which it complemented) were either grossly dis- 
torted or simply disregarded. 

The leaders of Hitler's Nazi Germany were aware of its shortage 
of manpower during World War II and appreciated the importance 
of the additional pool of labor afforded by prisoners of war as a source 
of that precious wartime commodity. Nevertheless, for a considerable 
period of time they permitted their ideological differences with the 
Communists to override their common sense and urgent needs. 16 And 



13 As the Soviet Union was not a party to this Convention, it considered that 
its relations with Germany and the latter's allies on prisoner-of-war matters were 
governed by the 1907 Hague Regulations. 1 ICRC Report 412. (No mention was 
made by the Soviet Union of the situation created by the si omnes clause contain- 
ed in the Fourth Hague Convention of 1907.) Japan, which was likewise not a 
party to the 1929 Convention, nevertheless announced its intention to apply that 
Convention, mutatis mutandis, on a basis of reciprocity. Ibid., 443. 

14 "The international instruments regulating the treatment of prisoners of war 
were drawn up on the basis of the experience gained in the war of 1914-18 and 
did not contemplate the wholesale and systematic use which many countries have 
since made of captive labor." Anon., Conditions of Employment 169. 

15 In February 1944, only 60 percent of the prisoners of war in the United 
States were being employed; by April 1945, that figure exceeded 90 percent. Lew- 
is & Mewha 125. In Germany "[t]he mobilisation of prisoner labour [had] been 
organised as part of the general mobilisation of man-power for the execution of 
the economic programme. . . ." Anon., Employment in Germany 318. It has been 
estimated that by February 1944, the 2,500,000 working prisoners of war repre- 
sented 8 percent of the German labor force. Vizzard, Policy 262. 

16 Thus, it has been stated that the improved feeding of Russian prisoners of 
war by the Germans in 1942 was instituted in order to obtain an adequate labor 
performance, and "must be assessed as a tactical sacrifice of dogma for the sake 
of short-range benefits to the warring Reich." D^llin, German Rule 423. In the 
Milch Case, 2 T.W.C. at 782, the Military Tribunal quoted a 1943 statement of 
Himmler who, in speaking of the Russian prisoners of war captured early in the 



217 

in Japan, which, although not a party to the 1929 Convention, had 
committed itself to apply its provisions, those relating to prisoner-of- 
war labor were among the many which were assiduously violated. 17 
Like all of the other belligerents during World War II, the United 
States found an urgent need for prisoner-of-war labor, both within 
its home territory and in the rear areas of the embattled continents. 
One study even goes so far as to assert that the use of the labor of 
the Italian prisoners of war in the Mediterranean theater was the 
only thing which made it possible for the United States to sustain 
simultaneously both the Italian campaign and the invasion of South- 
ern France, thereby hastening the downfall of Germany. 18 Similarly, 
it was found that in the United States the use of prisoners of war 
for work at military installations, and in agriculture and other au- 
thorized industries, served to release both army service troops and 
civilians for other types of work which were more directly related 
to the war effort. 19 

While the benefits of prisoner-of-war labor to the Detaining Power 
are patent, benefits flowing to the prisoners of war themselves as a 
result of their use in this manner are no less apparent. The reciprocal 
benefits resulting from the proper use of prisoner-of-war labor are 
well summarized in the following statement: 

The work done by the PW has a high value for the Detaining 
Power, since it makes a substantial contribution to its economic 
resources. The PW's home country has to reckon that the work 
so done increases the war potential of its enemy, maybe indi- 
rectly: and yet at the same time it is to its own profit that its 
nationals should return home at the end of hostilities in the best 
possible state of health. Work under normal conditions is a valu- 
able antidote to the trials of captivity, and helps PW to preserve 
their bodily health and morale. 20 



conflict, a very large number of whom did not survive their first winter of cap- 
tivity, deplored the fact that at that time the Germans "did not value the mass 
of humanity as we value it today, as raw material, as labor." 

17 The I.M.T.F.E. stated (at 1082) that "[t]he policy of the Japanese Govern- 
ment was to use prisoners of war and civilian internees to do work directly relat- 
ed to war operations." See also, Trial of Tanabe Koshiro; Vizzard, Policy 259, & 
263. 

18 Lewis & Mewha 199. 

19 Fairchild & Grossman 194. 

-° 1 ICRC Report 327. See also, Pictet Commentary 260; Flory, Prisoners of 
War 71 ; Girard-Claudon, Les prisonniers de guerre en face de revolution de la 
guerre 151, Feilchenfeld, Prisoners of War 47; PMG Review, III-372. Article 49 
of the 1949 Convention specifically states that the utilization of prisoners-of-war 
labor is "with a view particularly to maintaining them in a good state of physical 
and mental health." And, of course, the working pay which a prisoner of war 
will receive for his labor will frequently permit him to acquire extra items which 
would otherwise be beyond his reach. 



218 

During the close reappraisal of the 1929 Convention which followed 
World War II, the provisions thereof dealing with the subject of pris- 
oner-of-war labor were not overlooked; and the conferences which 
culminated in the 1949 Diplomatic Conference, as well as that Con- 
ference itself, redrafted many of those provisions of the 1929 Con- 
vention in an effort to plug the loopholes which the events of World 
War II had revealed. While there are obvious differences between the 
employment of workers available through a free labor market and 
the employment of prisoners of war, even a casual and cursory study 
will quickly disclose a remarkable number of similarities. The labor 
union which is engaged in negotiating a contract for its members 
with their employer is vitally interested in: (1) the conditions under 
which they will work, including safety provisions; (2) working hours 
and the holidays and vacations to which they will be entitled; (3) the 
compensation and other monetary benefits which they will receive; 
and (4) the grievance procedures which will be available to them. 
Because of the uniqueness of prisoner-of-war status, the 1949 Diplo- 
matic Conference felt it necessary, in drafting provisions for the bene- 
fit and protection of future prisoners of war, to continue to provide 
guidance with respect to certain types of problems in addition to those 
mentioned above, such as the categories of prisoners of war who may 
be compelled to work (a problem which does not normally exist for 
labor unions operating in a free civilian society, although it may come 
into existence to some extent in a total war economy) ; and, collateral 
to that, the specific industries in which they may or may not be em- 
ployed. Inasmuch as these two latter problems lie at the threshold of 
the utilization of prisoner-of-war labor, they will be considered before 
those enumerated above. 

C. CATEGORIES OF PRISONERS OF WAR WHO MAY BE 
COMPELLED TO WORK 

In general, Article 49 of the 1949 Convention provides that all 
prisoners of war, except commissioned officers, may be compelled to 
work. However, this statement requires considerable elaboration and 
is subject to a number of limitations. 

1. Physical Fitness 

Under the first paragraph of Article 49 only those prisoners of war 
who are physically fit may be compelled to work by the Detaining 
Power; and the work which they are called upon to perform must 
be of a nature to maintain them "in a good state of physical and men- 
tal health." In determining physical fitness, it is prescribed that the 
Detaining Power must take into account the age, sex, and physical 
aptitude of each prisoner of war as an individual. It may be assumed 
that these criteria are to be considered not only in determining wheth- 
er a prisoner of war should be compelled to work, but also in deter- 



219 

mining the type of work to which the particular prisoner of war 
should be assigned. For example, older prisoners of war should not 
be assigned to types of work which require great and constant exer- 
tion ; women prisoners of war should not be assigned to tasks requir- 
ing the lifting and moving of heavy loads, tasks which may be beyond 
their physical capabilities ; and male prisoners of war, although phys- 
ically fit to work, may not have the physical aptitude for certain jobs 
by reason of their size, weight, strength, lack of experience, etc. 21 It 
would appear that the provisions of the first paragraph of Article 49 
of the 1949 Convention require the Detaining Power to assure the 
assignment of the right man, from the physical point of view, to the 
right job. 

Under the provisions of Article 31 and the first paragraph of Ar- 
ticle 55 of the 1949 Convention, the determination of physical fitness 
must be made by medical personnel and at regular monthly intervals. 
It should be noted that the first of the cited articles is a general one 
which requires the Detaining Power to conduct thorough "medical 
inspections/' monthly at a minimum, primarily in order to supervise 
the general state of health of all prisoners of war and to detect con- 
tagious diseases; 22 while the second, which calls for a "medical ex- 
amination" at least monthly, is intended to verify the physical fitness 
of the prisoner of war for work, and particularly for the work to 
which he is assigned. 23 It is evident that one medical examination 
directed simultaneously toward both objectives would meet the dual 



21 During World War II the German use as miners of prisoners of war who did 
not have the necessary physical aptitude for this type of work and who were in- 
experienced was a constant source of dispute. The ICRC delegate in Berlin finally 
proposed to the German High Command that prisoners of war over 45 years of 
age be exempted from working as miners, but this proposal was rejected by the 
Germans on the ground that the 1929 Convention made no reference to age as a 
criterion of physical qualification for compulsory labor. 1 ICRC Report 329-31. 
This situation has now been rectified. 

22 See pp. 133-139 supra. 

23 The procedures followed in the United States during World War II were as 
follows : "Prisoners of war . . . are given a complete physical examination upon their 
first arrival at a prisoner of war camp. At least once a month thereafter, they are 
inspected by a medical officer. Prisoners are classified by the attending medi- 
cal officer according to their ability to work, as follows: (a) heavy work; (b) 
light work; (c) sick, or otherwise incapacitated — no work. Employable prisoners 
perform work only when the job is commensurate with their physical condition." 
McKnight, POW Employment 64. The quoted statement was based, at least in 
part, on POW Circular No. 1, para. 87, which was, in turn, taken from Article 
48 of the 1918 United States-German Agreement. 



220 

obligations thus imposed upon the Detaining Power. 24 

The provisions of the second paragraph of Article 55, authorizing 
a prisoner of war to appear before the camp medical authorities when- 
ever he considers himself incapable of working, is undoubtedly essen- 
tial, but it has grave potentialities. Certainly, if a prisoner of war 
does not feel capable of working he should be given an opportunity to 
have his condition verified by the medical authorities, not only so 
that, if medically appropriate, he may be excused from working, but 
also so that he may receive the medical treatment to which he is en- 
titled under the first paragraph of Article 30. 25 However, it can be 
anticipated that well-organized prisoners of war, intent upon creating 
as many difficulties as possible for the Detaining Power, will sometimes 
be directed by their anonymous leaders to report themselves en masse 
and at frequent intervals as being incapable of working and to request 
that they be permitted to appear before the medical authorities of the 
camp. Is the Detaining Power to be helpless if thousands of prisoners 
of war, many more than can be examined by available medical per- 
sonnel, all suddenly elect to claim physical unfitness for work and to 
demand the right to appear before the medical authorities ? Where the 
Detaining Power has good grounds for believing that such is the 
situation, and this will normally be quite apparent, it would undoubt- 
edly be fully justified in compelling every prisoner of war to work 
until his turn to appear before the medical authorities was reached 
in regular order with the complement of medical personnel which 
had previously been adequate for that particular prisoner-of-war 
camp. Thus, the act of the prisoners of war themselves in attempting 
to turn a provision intended for their protection into an offensive 
weapon, illegal in its very inception, would actually result in the caus- 
ing of harm to the very people whom it was intended to protect — the 
truly ailing and physically unfit prisoners of war. If such a procedure 
is followed by the Detaining Power, the use of the provisions of the 
second paragraph of Article 55 and the penultimate paragraph of 
Article 30 will quickly revert to that for which they were intended. 

The suggestion has been made that the medical examinations to 
determine physical fitness for work should preferably be made by the 
retained medical personnel of the Power of Origin. 26 This suggestion 



24 Article 31 speaks of "medical inspections," while the first paragraph of Arti- 
cle 55 uses the term "medical examinations." (A similar variance is found in the 
French version of the 1949 Convention.) It does not appear that any substantive 
difference was intended, particularly inasmuch as Article 31 considerably ampli- 
fies the term "inspection," making it quite clear that much more than a mere 
visual inspection was intended. 

25 See p. 134 supra. The second paragraph of Article 55 parallels the gen- 
eral provision contained in the first sentence of Article 30. 

26 Pictet, Commentary 212 & 289. For a discussion of "retained medical person- 
nel," see pp. 70-74 supra. 



221 

is apparently based upon the fact that the third paragraph of Article 
30, in providing for the general medical care and treatment of pris- 
oners of war, states that they "shall have the attention, preferably, of 
medical personnel of the Power on which they depend and, if possible, 
of their nationality." However, there is considerable difference be- 
tween assigning the medical personnel of the Power of Origin to 
render medical care and treatment to a fellow prisoner of war who is 
ill or injured, and permitting such personnel to say whether or not 
the prisoner of war is physically qualified to work. It is not believed 
that any Detaining Power would, or that the Convention intended that 
it should, permit retained medical personnel to make final decisions in 
this regard. 27 

2. Rank 

While Article 76 of Lieber's Code did contain the clause specifying 
that prisoners of war could be required to work "according to their 
rank," there was really no indication therein that the labor of all 
prisoners of war, regardless of rank, was not available to the Detain- 
ing Power in some capacity. However, Article 25 of the Declaration of 
Brussels and Article 71 of the Oxford Manual both provided that pris- 
oners of war could only be employed on work that would not be "humil- 
iating to their military rank." Article 6 of the 1899 Hague Regulations 
reverted to Lieber's rather vague phrase, "according to their rank" ; 
but the 1907 Hague Regulations went a step further, adding to the 
foregoing phrase the words "officers excepted," thereby for the first 
time giving a legislative basis to a practice that had, in fact, already 
been generally followed. 28 

Both the 1929 and the 1949 Conventions are much more specific in 
this regard, the latter amplifying and clarifying the already much 
more detailed provisions of its predecessor. Thus, while the first para- 
graph of Article 49 of the 1949 Convention authorizes the Detaining 
Power to utilize the labor of "prisoners of war," the second paragraph 
of Article 49 specifies that noncommissioned officers (NCOs) may only 
be required to do supervisory work, and the last paragraph of Article 
49 states without reservation that officers may not be compelled to 
work. It thus becomes clear that, as used in the first paragraph of 



27 Similarly, the function of determining whether a prisoner of war should be 
repatriated during hostilities for medical reasons is not assigned to the retained 
medical personnel, but is the responsibility of the medical personnel of the Mixed 
Medical Commissions consisting of two neutral members and one member appoint- 
ed by the Detaining Power. See Article 112 and Annex II. For a discussion of the 
Mixed Medical Commissions, see pp. 411^412 infra. 

28 One Japanese scholar has asserted that during the Russo-Japanese war 
(1904-05), the Japanese exempted officer prisoners of war from the requirement 
to work. Ariga, Guerre russo-japonaise 114. However, another claims that Japan 
did not require any Russian prisoners of war to work. Takahashi, Russo-Japanese 
War 125. 



222 

Article 49, the term * 'prisoners of war" really refers only to enlisted 
men below the noncommissioned-officer grade — in other words, 
privates. 

During World War II several problems arose with respect to the 
identification of noncommissioned officers for labor purposes. In the 
first place, many NCOs had had their identification documents taken 
from them upon capture (probably for intelligence purposes) and 
were thereafter unable to establish their entitlement to recognition 
of their grade. 29 On the other hand, a number of prisoners of war 
apparently claimed NCO grades to which they were not actually en- 
titled, probably in order to avoid hard labor. 30 The 1949 Convention 
attempts to obviate these problems. Thus, Article 21 of the 1929 Con- 
vention provided only that, upon the outbreak of hostilities, the bellig- 
erents would communicate to one another the titles and ranks in use 
in their armies in order to assure "equality of treatment between cor- 
responding ranks of officers and persons of equivalent status." This 
was construed as limiting the requirements of this exchange of infor- 
mation to the ranks and titles of commissioned officers. The first para- 
graph of Article 43 of the 1949 Convention makes it clear that infor- 
mation is to be exchanged concerning the ranks and titles of all 
persons who fall within the various categories of potential prisoners 
of war enumerated in Article 4 of the Convention. 31 Further, during 
World War II the military personnel of each belligerent carried only 
such identification documents, if any, as that belligerent elected to 
provide to its personnel. In addition, as just noted, if the prisoner of 



29 The ICRC has stated that 26,000 German noncommissioned officers who were 
prisoners of war and whose identity papers had been taken from them in England 
were compelled to work while interned in the United States because of their in- 
ability to prove their status. 1 ICRC Report 339. See note 11-288 supra. The Germ- 
an General Staff urged German noncommissioned-officer prisoners of war to work, 
very probably in order to avoid the deterioration, both physical and mental, which 
inevitably overtakes the completely inactive prisoner of war. 1 ICRC Report 339. 

30 Early in 1945 the military authorities in the United States discovered that 
many German prisoners of war had false documents purporting to prove non- 
commissioned officer status. They thereupon required all German prisoners of war 
who claimed to be noncommissioned officers to produce proof of such status in the 
form of a soldbuch or other official document. Thousands were unable to do so and 
were reclassified as privates. Rich, Brief History 516. To some extent these may 
have been the same prisoners of war referred to in the preceding note. 

31 See pp. 168-169 supra. It appears to the writer that the United States Army 
may have created problems for some of its members in this respect by the estab- 
lishment of a "specialist" classification of enlisted men who, although grouped in 
the same statutory grades as noncommissioned officers, are apparently not such. 
Manes, Barbed Wire Command 14. The strict interpretation of the term "non- 
commissioned officers" contemplated by the Soviet Union is evidenced by its de- 
sire, expressed at the 1949 Diplomatic Conference, to limit the exemption of non- 
commissioned officers from the requirement to do work other than supervisory to 
regular army ("re-enlisted") personnel. 2A Final Record 348, 361 & 566. 



223 

war did have an identification document in his possession when cap- 
tured, it was not unusual for the personnel of the Capturing Power 
to seize these documents for whatever intelligence value they might 
have, leaving the prisoner of war with no official identification materi- 
al. The 1949 Convention attempts to remedy both of these defects. The 
third paragraph of Article 17 requires each belligerent to issue to the 
members of its armed forces an identification card containing, as a 
minimum, certain information concerning identity, including rank; 
prescribes the desirable type of card; provides that it be issued in 
duplicate; and states that while the prisoner of war must exhibit it 
upon the demand of his captors, under no circumstances may it be 
taken from him. 32 This Article, if complied with by the belligerents, 
should do much to eliminate the problem of identifying noncommis- 
sioned officers that existed during World War II and that undoubtedly 
resulted in denying to many prisoners of war the rights to which 
they were entitled. 33 

Two other problems connected with the labor of noncommissioned 
officers are worthy of comment. On occasion, disputes may arise as to 
the types of work that can be construed as falling within the term 
"supervisory." The 1949 Diplomatic Conference made no attempt to 
solve this problem. There is much merit in the position taken by the 
ICRC that the term denotes "administrative tasks which usually con- 
sist of directing other ranks ; it obviously excludes all manual labor." 34 
The other problem concerns the right of a noncommissioned officer 
who has exercised the privilege given him. under both the 1929 and 
the 1949 Conventions to request work other than supervisory, there- 
after to withdraw his request. During World War II different prac- 
tices were followed by different belligerents. Thus Germany gave 
British noncommissioned officers the right to withdraw their re- 
quests, 35 while the policy of the United States was not to grant such 
requests for nonsupervisory work in the first place, unless they were 



32 See pp. 111-112 and 168-169 supra. 

33 Many men legitimately promoted in the combat zone may go for long periods 
of time without having an opportunity to obtain an identification card showing 
their new ranks and may become prisoners of war during that period. In view of 
the new concept of "advances of pay" contained in the first paragraph of Article 
60, it is all the more important for a sergeant to be able to establish that he is 
such. See pp. 198-200 supra. 

34 Pictet, Commentary 262. 

35 German Regulations No. 13, para. 59. The seeming magnanimity of this pro- 
vision is somewhat nullified by the last two sentences thereof, which indicate that 
"the employment of British noncommissioned officers has resulted in so many 
difficulties that the latter have far outweighed the advantages. The danger of 
sabotage, too, has been considerably increased thereby." 



224 

for the duration of captivity in the United States. 36 It has been urged 
that, inasmuch as a noncommissioned officer is free to volunteer to 
undertake nonsupervisory work, he should be equally free to discon- 
tinue such work at will — subject to the right of the Detaining Power 
to provide him with such employment when he volunteers only if he 
agrees to work for a fixed term, which may be extended upon his 
request. 37 This appears to be a logical and practical solution to the 
problem, although it is probably one to which not every belligerent 
will subscribe. 

The last paragraph of Article 49 is very clear that officers cannot be 
compelled to do any type of work, even supervisory, unless they vol- 
unteer. Once they have done so, the problems relating to their labor are 
quite similar to those relating to the voluntary labor of noncommis- 
sioned officers, except that as a matter of practice they were apparent- 
ly rather generally permitted to discontinue working whenever they 
decided to do so. 38 In general, the labor of officers has not been the 
cause of any material dissension between belligerents. 39 

3. Other Prisoners of War Exempted from Working 

Scattered throughout the 1949 Convention are a number of other 
provisions specifically limiting the work which may be required of 
certain categories of captured enemy personnel, prisoners of war or 
other, held by the Detaining Power. Thus, medically trained personnel 
who, when captured, were not assigned to the medical services in the 
enemy armed forces and who are, therefore, ordinary prisoners of 



36 U.S. War Dept., Technical Manual TM 19-500, Enemy Prisoners of War, Ch. 
5, Sec. 1, para. 4c. This is no longer the policy of the United States. U.S. Army 
Regs. 633-50, para. 206a (2) provides that a noncommissioned officer ". . . may at 
any time, revoke his voluntary request for work other than supervisory work." 

37 Pictet, Commentary 262. The Commentary continues with the statement that 
"during the Second World War, however, prisoners of war were sometimes more 
or less compelled to sign a contract for an indefinite period which bound them 
throughout their captivity; that would be absolutely contrary to the present pro- 
vision." The present writer agrees that this should be the rule but confesses him- 
self as unable to identify the provision of the second paragraph of Article 49 of 
the 1949 Convention which so provides, or to determine wherein, in this regard, it 
differs from its predecessor, the third paragraph of Article 27 of the 1929 Con- 
vention. (Perhaps the Commentary is referring to Article 7.) 

38 1 ICRC Report, 338. Inasmuch as the third paragraph of Article 49 states 
that officers ". . .may in no circumstances be compelled to work" (emphasis add- 
ed), there is even less basis for denying them the right to discontinue work for 
which they have volunteered then there is for noncommissioned officers. U.S. 
Army Regs. 633-50, para. 206a (1), covering commissioned officers, is substantially 
identical to the provision relating to NCOs quoted in note 36 supra. 

39 1 ICRC Report 337-38. During World War II Japan instituted a "no work 
no eat" policy for officers. I.M.T.F.E. 1176. An ex-prisoner of war has stated that 
coercion was used to force officers to volunteer to work. Schacht Statement. One 
writer says that under War Ministry orders officers were "guided" to "volunteer." 
Vizzard, Policy 263. 



225 

war, may be required to perform medical functions for the benefit of 
their fellow prisoners of war; but if so required, they are, under 
Article 32, entitled to the treatment accorded to retained medical per- 
sonnel and are exempted from any other work. 40 Under Article 36 this 
same rule applies to ministers of religion who were not serving as 
such when captured. Prisoners of war assigned to provide essential 
services in officer prisoner-of-war camps as orderlies may not, under 
the second paragraph of Article 44, be required to perform any other 
work. Finally, the first paragraph of Article 81 specifies that prisoners' 
representatives may likewise not be required to perform any other 
work, but this restriction applies only "if the accomplishment of their 
duties is thereby made more difficult.' ,41 While these various provisions 
are not of very great magnitude in the overall prisoner-of-war picture, 
they can, of course, be of major importance to the particular indi- 
viduals concerned. 

D. TYPES OF WORK THAT PRISONERS OF WAR MAY BE 
COMPELLED TO PERFORM 

The categories of industries in which prisoners of war may be com- 
pelled to work and the types of labor which they may be compelled 
to perform in those industries have generated much controversy. Long 
before final agreement was reached thereon at the 1949 Diplomatic 
Conference, the article of the Convention concerned with this problem 
had been termed "the most disputed article in the whole Convention, 
and the most difficult of interpretation." 42 Unfortunately, it appears 
fairly certain that some of the agreements ultimately reached in this 
area are destined to magnify, rather than to minimize or eliminate, 
this problem. 43 

The early attempts to draft rules concerning the categories of labor 
in which prisoners of war could be employed merely authorized their 
employment on "public works which have no direct connection with 
the operations in the theater of war," 44 or stated that the tasks of 
prisoners of war "shall have nothing to do with the military opera- 
tions." 45 The inadequacy of these provisions having been demonstrated 



40 See p. 73 supra. 

41 See pp. 303-304 infra. 

42 2A Final Record 442. Another participant in the 1949 Diplomatic Conference 
later wrote: "Perhaps no section of the Convention gave rise to more debate and 
expressions of differences of view than that dealing with 'Labour of Prisoners of 
War.' At the outset, it appeared that all that could be agreed upon was the fact 
that the 1929 treatment of the subject was inadequate and ambiguous." Dillon, 
Genesis 51. 

43 Baxter, Book Review, 50 AJ.I.L. 979. 

44 Article 25, Declaration of Brussels; Article 71, Oxford Manual. 

45 Article 6, 1899 Hague Regulations. The French (official) version of Article 6 
of the 1907 Hague Regulations is identical with its predecessor in this regard. 



226 

by the events of World War I, an attempt at elaboration was made in 
drafting the cognate provisions of Article 31 of the 1929 Convention, 
in which were included not only prohibitions against the employment 
of prisoners of war on labor having a "direct relation with war opera- 
tions," but also against their employment on certain specified types 
of work — "manufacturing and transporting arms or munitions of any 
kind, or . . . transporting material intended for combatant units." 

During World War II these latter provisions proved little more 
successful than their predecessors in regulating prisoner-of-war labor. 
The term "direct relations with war operations" once again demon- 
strated itself to be exceedingly difficult to interpret 46 in a total war 
in which practically every economic resource of the belligerents is 
mobilized for military purposes. 47 Each belligerent attempting to com- 
ply with the labor provisions of the 1929 Convention found itself re- 
quired to make a specific determination in all but the very few obvious 
cases as to whether a particular occupation fell within the ambit of 
the prohibitions. 48 As could be expected, there were many disputed 
decisions. 

In drafting the proposed new convention aimed at obviating the 
many difficulties which had arisen during the two world wars, the 
ICRC attempted a new approach to the prisoner-of-war labor prob- 



46 "What constituted a direct relation with war operation was a matter of per- 
sonal opinion or indeed, guess." Dillon, Genesis 52. An anonymous writer for the 
International Labour Organization found it questionable that the restrictions of 
the first paragraph of Article 31 of the 1929 Convention concerning work directly 
connected with war operations were being uniformly interpreted. Anon., Condi- 
tions of Employment 186. After the end of World War II the United States Mil- 
itary Tribunal in the I.G. Farben Case said (at 8 T.W.C. 1189) : 

To attempt a general statement in definition or clarification of the term 
"direct relation to war operations" would be to enter a field that the writers 
and students of international law have found highly controversial. 

47 Flory, Nouvelles conception 58; Janner, Puissance protectricc 54; Feilchen- 
feld, Prisoners of War 13. 

48 Early in January 1943 the United States adopted the following policy with 
regard to prisoner-of-war labor : 

Any work outside the combat zones not having a direct relation with war 
operations and not involving the manufacture of transportation of arms or 
munitions or the transportation of any material clearly intended for combat 
units, and not unhealthful, dangerous, degrading, or beyond the particular 
prisoner's physical capacity, is allowable and desirable. 
AG letter of January 1943, subj : War Department Policy with respect to Labor 
of Prisoners of War, quoted in Lewis & Mewha 89. This was obviously so general 
as to cause many specific problems to arise, and in December 1943 the United 
States found it necessary to establish a Prisoner of War Employment Review 
Board (ibid., 113) which was called upon to make a great many decisions in this 
area. Mason, German Prisoners of War 211. Postwar researchers have collated 
lists which include literally hundreds of occupations as to which specific decisions 
were made. Lewis & Mewha 146-47, 166-67, & 203; Tollefson, Enemy Prisoners 
of War 62 note. 



227 

lem. Instead of specifying prohibited areas in broad and general terms, 
as had been the previous practice, leaving to the belligerents, the Pro- 
tecting Powers, and the humanitarian organizations the decision as 
to whether a specific task was or was not prohibited, it decided to list 
affirmatively and with particularity the categories of labor in which 
the Detaining Power would be permitted to employ prisoners of war, 
at least impliedly prohibiting their use in any type of work not spe- 
cifically listed. 49 The International Red Cross Conference held in Stock- 
holm in 1948, to which this new approach was proposed, accepted the 
idea of affirmatively specifying the areas in which prisoners of war 
could be required to work ; but, instead of the enumeration of specifics 
which the ICRC had prepared, the Conference substituted general 
terms. 50 The ICRC was highly critical of this action. 51 At the 1949 
Diplomatic Conference the United Kingdom proposed the substitution 
of the original ICRC proposal in place of that contained in the draft 
adopted at Stockholm, and it was this original text, with certain 
amendments which will be discussed later, which ultimately became 
Article 50 of the 1949 Convention. While there is considerable merit 
to the new approach, the actual phraseology of the Article leaves much 
to be desired. 52 An analysis of the various provisions contained in 
Article 50 of the 1949 Convention and, to the extent possible, a delimi- 
tation of the areas covered, or probably intended to be covered, by 
each category of work which a prisoner of war may be "compelled" to 
do, 53 and the problems inherent in each, is in order. 



49 Draft Revised Conventions 82-83. 

50 The proposed new Article 42 (now 50) provided that "prisoners of war may 
be required to do only work which is normally required for the feeding, sheltering, 
clothing, transportation and health of human beings." Revised Draft Conven- 
tions 69. It is of interest that that was substantially the basic policy that had 
been followed by the United States in interpreting the provisions of Article 31 of 
the 1929 Convention. McKnight, POW Employment 54. 

51 Remarks and Proposals 51-53. 

52 In its Report to the Plenary Assembly of the 1949 Diplomatic Conference, 
Committee II (Prisoners of War) characterized this Article as one which "clari- 
fies ... by a limitative enumeration of the categories of work which prisoners [of 
war] may be required to do." 2A Final Record 566. On the contrary, the expres- 
sion "military character or purpose," used in subparagraphs (b), (c), and (f) of 
Article 50 are practically indefinable. As to these subparagraphs, the basic prob- 
lem, as it existed when the words "war operations" were used, remains unchanged. 
Pictet, Commentary 266. In view of the obvious need for authoritative interpreta- 
tions of the provisions of this article, it would be helpful if sizable groupings of 
nations, such as NATO and the Warsaw Pact, agreed upon and announced their 
interpretations of these provisions, as the Nordic Experts did in other areas. Un- 
fortunately, NATO has apparently decided not to standardize procedures relating 
to the utilization of prisoner-of-war labor. STANAG No. 2044, para. 10. 

53 The difficulties experienced in selecting the appropriate verb to be used in the 
opening sentence of Article 50 were typical of the overall drafting problem. The 
following terms were contained in or suggested for the various texts, beginning 
with the original ICRC draft that was submitted to the 1948 Stockholm Confer- 



228 

1. Camp Administration, Installation, or Maintenance 

This indirectly authorized category of prisoner-of-war labor refers 
to the management and operation of the camps established for the 
prisoners of war themselves ; in other words, broadly speaking, it con- 
stitutes their own "housekeeping." Early in World War II the United 
States divided all prisoner-of-war labor into two classes: class one, 
that related to their own camps ; and class two, all other. 54 This dis- 
tinction still appears to be a valid one. It has been estimated that the 
use of prisoners of war in the United States for the maintenance and 
operation of their own camps, and of other military installations, 55 
constituted their major utilization. 56 While this is believed to be some- 
what of an overstatement, it can certainly be assumed that a very 
considerable portion of them will always be engaged in the adminis- 
tration, installation, and maintenance of their own camps. However, 
it can also be assumed that in any future major international armed 
conflict demands for prisoner-of-war labor will be so great that short- 
ages will exist, requiring that the administration of prisoner-of-war 
camps be conducted on an extremely austere basis. 



ence and continuing chronologically through the various drafts, amendments, and 
discussions, until final approval of the article by the Plenary Assembly: "obliged 
to" {Draft Revised Conventions 82-83) : "required to" (Revised Draft Conventions 
69) ; "obliged to" (3 Final Record 70) ; "employed on" (2A Final Record 272) ; 
"engaged in" {ibid., 470) ; "obliged to" {ibid., 344) ; "compelled to" (2B Final 
Record 176) ; and "compelled to" (Article 50 as adopted). 

54 POW Circular No. 1, para. 77. Paragraph 78 of the same Circular contained 
the following informative enumeration : 

78. Labor in class one is primarily for the benefit of prisoners. It need not 
be confined to the prisoner of war camp or to the camp area. Class one labor 
includes : 

a. That which is necessary for the maintenance or repair of the prisoner of 
war camp compounds including barracks, roads, walks, sewers, sanitary facil- 
ities, water pipes, and fences. 

6. Labor incident to improving or providing for the comfort or health of 
prisoners, including work connected with the kitchens, canteens, fuel, garbage 
disposal, hospitals, and camp dispensaries. 

c. Work within the respective prisoner companies as cooks, cook's helpers, 
tailors, cobblers, barbers, clerks, and other persons connected with the interior 
economy of their companies. In apportioning work, consideration will be given 
by the company commander to the education, occupation, or profession of the 
prisoner. 

55 The utilization of prisoner-of-war labor for the operation and maintenance of 
military installations occupied by the armed forces of the Detaining Power does 
not fall within the classification of camp administration referred to in the Conven- 
tion. While many such uses would probably come within the category of domestic 
services (cooks, cook's helpers, waiters, kitchen police, etc.), which are authorized, 
it appears that many others are no longer permitted. Employment of prisoners of 
war in the Information Bureau maintained by the Detaining Power is specifically 
authorized by Article 122. 

56 Fairchild & Grossman 190. See also, McKnight, POW Employment 57. 



229 

2. Agriculture 

This field of prisoner-of-war utilization, with its collateral field of 
food processing, combined with camp administration to account for 
the labor of the great majority of employed prisoners of war during 
World War II. 57 There are no restrictions imposed by Article 50(a) 
of the 1949 Convention on the employment of prisoners of war in any 
aspect of agricultural work, 58 the fact that the product of their labor 
may eventually be used in the manufacture of a military item or be 
supplied to and consumed by combat troops being too remote to permit, 
or to warrant, restrictions. 59 

3. Production or Extraction of Raw Materials 

This category of compulsory employment, authorized by Article 
50(b), includes activities in such industries as mining, logging, quar- 
rying, etc. It is one of the areas in which problems constantly arose 
during World War II, and in which there were frequent disagreements 
between belligerents as well as between Detaining Powers and Pro- 
tecting Powers or humanitarian organizations. Thus, after the con- 
clusion of World War II the ICRC reported that it had been called 
upon to intervene more frequently with respect to prisoners of war 
who worked in mines than with respect to any other problem. 60 



57 In the spring of 1940 more than 90 percent of the Polish prisoners of war 
held by the Germans were employed in agriculture; and while that percentage 
later dropped, it always remained extremely high. Anon., Employment in Germany 
317. In the United States, even though more than 50 percent of the man-months 
worked in industry by prisoners of war were performed in agriculture, the de- 
mands for such labor could never be fully met. Lewis & Mewha 125-26. An excep- 
tion occurred in Canada, where the great majority of the prisoners of war were 
used in the lumbering industry. Anon., Employment in Canada 337. 

58 Pictet, Commentary 266. It is incomprehensible that, despite the experiences 
of World War II, the enumeration that was originally proposed by the ICRC 
(Draft Revised Conventions 82-83), and was discarded by the 1948 Stockholm 
Conference (Revised Draft Conventions 69), only to be restored to the Convention 
by the 1949 Diplomatic Convention at the urging of the United Kingdom delega- 
tion (3 Final Record, Annex 116, at 70), did not include agriculture as a permit- 
ted class. A member of the United States delegation proposed that it be added at 
the beginning of the list, and his proposal was adopted without discussion or op- 
position. 2A Final Record 470. 

59 An unsuccessful attempt to make this distinction in another context occurred 
in Vietnam, when the position was taken that herbicides could be used against 
crops intended for military consumption but not against crops intended for civ- 
ilian consumption. Bindschedler 36-37. See also Levie, Weapons of Warfare 160. 

60 1 ICRC Report 329. For a specific example, see note 21 supra. (Unfortun- 
ately, few data are available concerning the activities of Protecting Powers in this 
regard as they rarely publish any details of their wartime activities, even after 
the concluson of peace. An unofficial report of Swiss activities as a Protecting 
Power during World War II is contained in Janner, Puissance protectrice.) In 
the I.G. Farben Case, 8 TWC at 1187, the Tribunal said: 



230 

Inasmuch as the utilization of prisoners of war in this field has been, 
and continues to be, authorized, the problems which arise usually relate 
either to the physical ability and aptitude of the particular prisoner 
of war to participate in heavy, difficult, and specialized labor of this 
nature, or to working conditions — including safety precautions and 
equipment — rather than to the fact of the utilization of prisoners of 
war in the specific industry. The first of these problems has already 
been discussed 61 and the latter will be discussed in the general analysis 
of that particular problem. 62 

4. Manufacturing Industries (except Metallurgical, Machinery, 
and Chemical) 63 

In modern days of total warfare and the total mobilization of the 
economy of belligerent nations, it has become increasingly impossible 
to state with any degree of positiveness that any particular industry 
does not have some connection with the war effort. Where the degree 
of such connection is the criterion for determining the permissibility 
of the use of prisoners of war in a particular industry, as it was prior 
to the 1949 Convention, problems and disputes are inevitable. In this 
respect, by authorizing compulsory prisoner-of-war labor in most man- 
ufacturing industries and by specifically prohibiting it in the three 
categories of industries that will be engaged almost exclusively in 
war work, Article 50 (b) of the new Convention represents a positive 
and progressive development in the law of war and has probably 
eliminated many potential disputes. 

During World War II the nature of the item manufactured and, to 
some extent, its intended ultimate destination determined whether or 



The use of prisoners of war in coal mines in the manner and under the con- 
ditions disclosed by this record, we find to be a violation of the regulations of 
the Geneva Convention and, therefore, a war crime 

61 See pp. 218-221 supra. 

62 See pp. 240-244 supra. 

63 The source of some of the wording and punctuation of Article 50(b) is some- 
what obscure. As submitted by Committee II (Prisoners of War) to the Plenary 
Assembly of the 1949 Diplomatic Conference, it read: 

. . .manufacturing industries, with the exception of iron and steel, machinery 
and chemical industries and of public works, and building operations which 
have a military character or purpose. 
2A Final Record 576 & 585-86. Although this portion of Article 50 was approved 
by the Plenary Assembly without amendment (2B Final Record 290-98), in the 
Final Act of the Conference (which is, of course, the official, signed version of the 
Convention) , the same provision reads: 

. . .manufacturing industries, with the exception of metallurgical, machinery 
and chemical industries; public works and building operations which have no 
mlitary character or purpose. 
1 Final Record 254. These changes in wording and puctuation (made in the Eng- 
lish version only) represent both a considerable extension and a clarification and 
should eliminate many disputes which might otherwise have arisen. However, it 
would be interesting to ascertain just how they came about. 



231 

not the use of prisoners of war in its manufacture was permissible. 
Thus, in the United States it was determined that prisoners of war 
could be used in the manufacture of truck parts, as these had a civil- 
ian, as well as a military, application ; but that they could not be used 
in the manufacture of tank parts, as these had only a military appli- 
cation. 04 Under the 1949 Convention neither the nature, nor the ulti- 
mate destination, nor the intended use of the item being manufactured 
is material. All motor vehicles fall within the category of "machinery," 
and prisoners of war therefore may not be used in their manufacture. 
On the other hand, prisoners of war may be used in a food-processing 
plant or in a clothing factory, even though some, or even all, of the 
food processed or clothing manufactured may be destined for the 
armed forces of the Detaining Power. 

Two sound bases have been advanced for the decision of the 1949 
Diplomatic Conference to prohibit in its entirety the compelling of 
prisoners of war to work in the metallurgical, machinery, and chemi- 
cal industries : first, that in any general war these three categories of 
industries will unquestionably be totally mobilized and will be used 
exclusively for the armaments industry; and second, that factories 
engaged in these industries will be key objectives of enemy air (and 
now of enemy rocket and missile) attacks and would therefore subject 
the prisoners of war to military action from which they are entitled 
to be isolated. 65 The 1949 Diplomatic Conference apparently balanced 
this total, industry-wide prohibition of compulsory labor in the three 
specified industries against the general authorization to use prisoners 
of war in every other type of manufacturing without requiring the 
application of any test to determine its relationship to the war effort 
of the Detaining Power. 

It should be borne in mind that the prohibition under discussion 
is directed only against compelling prisoners of war to work in the 
specified industries. (As we shall see, by inverted phraseology, sub- 
paragraphs (b), (c), and (f) of Article 50 also prohibit the Detaining 
Power from compelling them to do certain other types of work where 
such work has "military character of purpose.") The question then 
arises as to whether they may volunteer for employment in the pro- 



64 Lewis & Mewha 77. After World War II one of the judges of a United States 
Military Tribunal sitting at Nuremberg held: 

. . .as a matter of law that it is illegal to use prisoners of war in armanent 
factories and factories engaged in the manufacture of airplanes for use in 
the war effort. 
The Milch Case, 2 TWC at 867. The decision in this regard would probably have 
been otherwise had the defense been able to show that the airplanes were intended 
exclusively for civilian use. Under Article 50(b) it would be illegal to use prison- 
ers of war on this type of work without regard to the intended use of the air- 
planes, as they fall within the proscribed category of "machinery." 

65 Pictet, Commentary 268-69. 



232 

hibited industries. Based upon the discussions at the 1949 Diplomatic 
Conference, 66 it clearly appears that the prohibitions contained in the 
various provisions of Article 50 are not, and were not intended to be, 
absolute in character and that a prisoner of war may volunteer to 
engage in the prohibited employments, just as he is affirmatively au- 
thorized by Article 52 to volunteer for labor which is "of an unhealthy 
or dangerous nature." The problem will, of course, arise of assuring 
that the prisoner of war is a true volunteer and that neither mental 
coercion nor physical force has been used to "persuade" him to volun- 
teer to work in the otherwise prohibited field of labor. 67 However, the 
fact that this particular problem is difficult of solution (and that the 
possibility undoubtedly exists that some prisoners of war will be 
coerced into "volunteering") cannot be permitted to justify an incor- 
rect interpretation of these provisions of the Convention, as to which 
the indisputable understanding of the 1949 Diplomatic Conference is 
clearly evidenced in the travaux preparatoires. 

5. Public Works and Building Operations Which Have No 
Military Character or Purpose 

With respect to this provision of Article 50(b), it is first necessary 
to determine the meaning to be ascribed to the term "military charac- 
ter or purpose." This is no easy task. 68 Because the term defies defini- 



66 As indicated in note 53 supra, the decision to use the words "compelled to" in 
the first sentence of Article 50 was reached only after the consideration and re- 
jection of numerous alternatives. Words such as "prisoners may only be employed 
in" were strongly urged because they would preclude the Detaining Power from 
using pressure to induce prisoners of war to "volunteer" as they still could not 
be "employed" to do an unlisted class of work (2A Final Record 343) ; and words 
such as "prisoners of war may be obliged to do only" (or "compelled to do only") 
were just as strongly urged on the very ground that the alternative proposal 
would preclude volunteering (ibid., 342). The proponents of the latter position 
were successful in having their phraseology accepted. Ibid., 344; 2B Final Record 
176. 

67 The ICRC appears to be inconsistent in asserting that the prohibition against 
work by prisoners of war. in these industries is absolute (Pictet, Commentary 
268), but that prisoners of war may volunteer to handle stores which are military 
in character or purpose (ibid., 278), work which the Detaining Power is likewise 
prohibited from compelling prisoners of war to do. The statement that the abso- 
lute prohibition of Article 7 against the voluntary renunciation of rights by pris- 
oners of war was necessary "because it is difficult, if not impossible, to prove the 
existence of duress or pressure" (ibid., 89) is, of course, equally applicable to all 
of the prohibitions of Article 50 and 52, but the Diplomatic Conference obviously 
elected to take a calculated risk in this regard insofar as prisoner-of-war labor 
is concerned. 

68 In his post-Conference article, General Dillon showed considerable restraint 
when he said mei Ay that many delegations believed that the phrase "will create 
some difficulty in future interpretations." Dillon, Genesis 52-53. He had been much 
more vehement at the Diplomatic Conference. 2 A Final Record 342-43. As we shall 
see, the same problems are presented with respect to Article 50(c) (see pp. 235- 
236 and (f) (see p. 237). 



233 

tion in the ordinary sense of that word, it will be necessary to define 
by example. Moreover, the discussions which occurred at the 1949 
Diplomatic Conference unfortunately provide little that is helpful on 
this problem. 

A structure such as a fortification clearly has, solely and exclusively, 
a "military character." Conversely, a structure such as a bowling 
alley clearly has, solely and exclusively, a civilian character. The for- 
tification is intended for use in military operations; hence it has not 
only a "military character" but also a "military purpose." The bowling 
alley is intended for exercise and entertainment; hence it does not 
have a "military purpose," even if some or all of the individuals using 
it will be members of the armed forces. 69 

These examples have been comparatively black and white — at least 
insofar as it is possible to have black and white examples in this field. 
Unfortunately, as is not unusual, there is also a large gray area. This 
is particularly true of the term "military purpose." A structure will 
usually be clearly military or clearly civilian in character ; but whether 
its "purpose" is military or civilian will not always be so easy of 
determination. A sewer is obviously civilian in character ; and the fact 
that it is to connect a military training installation and the municipal 
sewage disposal plant does not give it a military purpose. On the other 
hand, a road is likewise civilian in character ; but a road leading only 
from a military airfield to a bomb dump would certainly have a mili- 
tary purpose. Similarly, a theater is civilian in character ; but if it is 
a part of a military training installation and is to be used exclusively, 
or primarily, for the showing of military training films, then it, too, 
would have a military purpose. However, a theater which is intended 
solely for entertainment purposes, like the bowling alley, retains its 
civilian purpose, even though the audience will be largely military. 

To summarize, if the public works or building operations clearly 
have a military character, prisoners of war may not be compelled to 
work thereon ; if they do not have a military character, but are being 
undertaken exclusively or primarily for a military use, then they will 
usually have a military purpose, and, again, prisoners of war may not 
be compelled to work thereon; while if they do not have a military 
character and are not being built exclusively or primarily for a mili- 
tary use, then they have neither military character nor purpose, and 



69 The test is whether it is intended for military use and not whether it is in- 
tended for use by the military. A bowling alley or a tennis court or a clubhouse 
might be intended, perhaps exclusively, for use by the military, but such struc- 
tures certainly have no military use per se and, therefore, they do not have a 
"military purpose." 



234 

prisoners of war may be compelled to work thereon, even though 
there may be some incidental military use. 70 

Having determined, insofar as it is possible to do so, the meaning 
of the term "military character or purpose," let us apply it to some of 
the problems which have heretofore arisen. Although the use of com- 
pulsory prisoner-of-war labor in the construction of fortifications had 
long been considered improper, 71 after World War II a United States 
Military Tribunal sitting in Nuremberg, found "uncertainty" in the 
law and held such labor not obviously illegal where it was ordered by 
superior authority and was not required to be performed in dangerous 
areas. 72 Under the 1949 Convention such a decision would be clearly 
untenable. A fortification is military both in character and in purpose 
and the use of compulsory prisoner-of-war labor in its construction 
would be prohibited, no matter what the circumstances or location 
might be. The same is true of other construction of a uniquely military 
character such as ammunition dumps, firing ranges, tank obstacles, 
etc. On the other hand, brush clearance and the construction of fire- 
breaks in wooded areas far from the combat zone, the digging of 
drainage ditches, 73 the building of local air-raid shelters, 74 and the 
clearing of bomb rubble from city streets 75 are typical of the types of 



70 The foregoing is substantially the position taken by the United States in U.S. 
Army Regs. 633-50, para. 208b (1), which reads: 

(1) Military character or purpose. . . .The term 'military character" ap- 
plies to those items or to those types of construction which are used exclu- 
sively by members of the Armed Forces for operational purposes (e.g., arms, 
helmets, gun emplacements, and confidence courses) as contrasted to items or 
structures which may be usd by either civilian or military personnel {e.g., 
food, soap, buildings, public roads, and railroads). The term "military pur- 
pose" applies to activities which are intended primarily or exclusively for 
military operations as contrasted with activities intended primarily or exclu- 
sively for other purposes. . . . 
It differs from the ICRC position which is that "[everything which is command- 
ed and regulated by the military authority is of a military character, in contrast 
to what is commanded and regulated by the civil authorities." Pictet, Commentary 
267. However, the latter statement is somewhat leavened by a fairly broad inter- 
pretation of the term "military purpose" on the basis that in wartime "anything 
may have an incidental military purpose" and that "an excessively restrictive in- 
terpretation of the letter of the Convention. . .would ultimately lead only to con- 
tinuing and recurring infringements of the present provision." Ibid., 268. 

71 Flory, Prisoners of War 74. 

7 2 The High Command Case (US. v. Von Leeb) , at 11 T.W.C. 534. No such un- 
certainty existed in the minds of the members of the Tribunal with respect to the 
use of prisoners of war in the construction of combat-zone field fortifications. 
Ibid., 538. 

7 3 Lewis & Mewha 89-90. 

74 German Regulations No. 39, para 738. 

75 Pictet, Commentary 267-68, where a distinction is justifiably drawn between 
clearing debris from city streets and clearing it from an important defile used 
only for military purposes. 



235 

public works and building operations which have neither military 
character nor military purpose. 76 

If the foregoing discussion has added but little light to the problem, 
it is hoped that it has at least focused attention on an area which can 
be expected to produce considerable controversy; and here, too, the 
problem will be further complicated by the question of volunteering. 

6. Transportation and Handling of Stores Which Are Not 
Military in Character or Purpose 

Article 31 of the 1929 Convention prohibited the use of prisoners of 
war in the transport of arms or munitions of any kind, or on the trans- 
port of material destined for combatant units." 77 The cognate provi- 
sions of Article 50(c) of the 1949 Convention clarify this in some 
respects and obscure it in others. 

The former provision created problems in the determination of the 
point of time at which material became "destined" for a combatant 
unit and of the nature of a "combatant unit." These problems have 
now been eliminated, the ultimate destination of the material trans- 
ported or handled no longer being decisive. However, creating new 
difficulties is the fact that the problem of the application of the amor- 
phous term "military in character or purpose" is presented once again. 
Apparently, a prisoner of war may now be compelled to work in a 
factory manufacturing military uniforms, or gas masks, or camou- 
flage netting, as these items are neither made by the three prohibited 
manufacturing industries, nor is their military character or purpose 
material ; but once manufactured, a prisoner of war may not be com- 
pelled to load them on a truck or freight car, as they probably have a 
military character and they certainly have a military purpose. Con- 
versely, prisoners of war may not be compelled to work in a factory 
making barbed wire, inasmuch as such a factory is in the prohibited 
metallurgical industry ; but they may be compelled to handle and trans- 
port it where it is destined for use on farms or ranches, as it would 



™ See U.S. Army Regs. 633-50, para. 208b (1) (a). 

77 For clear violations of this provision during World War II by the Germans, 
see Maughan, Tobruk 761-62; and by the Japanese, see I.M.T.F.E. 1082-83 and 
Vizzard, Policy 259, 263. See also, In re Student. (Student, a German airborne 
commander, was charged with responsibility for compelling newly captured British 
prisoners of war to unload arms and ammunition from German planes during the 
course of the attack on Crete by German parachutists. He was found guilty by a 
British Military Court, but the findings and sentence were not confirmed by the 
convening authority. It is impossible to say whether or not this was because of 
the acceptance of Student's contention that the temporary detailing of prisoners 
of war to work in the combat zone is unavoidable in airborne operations. The note 
of the United Nations War Crimes Commission (4 LRTWC 118) indicates the 
belief that the act was a clear breach of international law.) 



236 

then have neither military character nor purpose. 78 Surely, the 1949 
Diplomatic Conference did not knowingly intend any such inconsistent 
results; but it is difficult to justify any other conclusions logically. 

Just as was determined with respect to public works and building 
operations, it is extremely doubtful that the ultimate intended use of 
the stores is, alone, sufficient to give them a military character or pur- 
pose. Thus, as has been seen, agriculture and food processing are 
authorized categories of compulsory labor for prisoners of war with- 
out any restrictions. The food grown and processed obviously has no 
military character; and the fact that it will ultimately be consumed 
by members of the armed forces of the Detaining Power, even in a 
combat zone, does not give it a military purpose. Accordingly, prison- 
ers of war may be compelled to handle and transport such stores. The 
same reasoning would apply to blankets and sleeping bags, to tents 
and tarpaulins, to socks and soap. 

In this general category, again, the prohibition is only against com- 
pulsion, and prisoners of war who volunteer may be assigned to the 
work of transporting and handling stores, even though they have a 
military character or purpose. And, once again, the problem will arise 
of assuring that these prisoners of war have actually volunteered for 
the work to which they are assigned. 

7. Commercial Business, and Arts and Crafts 

It is extremely doubtful whether very many prisoners of war will 
be given the opportunity to engage in a commercial business, despite 
the fact that it is specifically listed in Article 50(d), along with arts 
and crafts. The prisoner-of-war barbers, tailors, shoemakers, cabinet- 
makers, etc. — all potential commercial entrepreneurs — will usually be 
required to ply their trades within the prisoner-of-war camp, for the 
benefit of their fellow prisoners of war as a part of the camp activities 
and administration. However, it is conceivable that in some locales 
they might be permitted to set up their own shops or to engage in 
their trades as employees of civilian shops owned by citizens of the 
Detaining Power. 

That prisoners of war will be permitted to engage in the arts and 
crafts is much more likely. No prisoner-of-war camp has ever lacked 
artists, both professional and amateur, who produce paintings, wood 
carvings, metal objects, etc., that find a ready market, usually through 
the camp canteen, among the military and civilian population of the 
Detaining Power. 79 However, normally this category of work will be 



78 See U.S. Army Regs. 633-50, para. 208b (1) (b) which states that "[i]f the 
stores in question are military in character, PW may not be compelled to engage 
in the transport or handling thereof. If the items are not military in character, 
then the purpose for which they are to be used is the determining factor." 

79 See e.g., notes 11-70 and 11-460 supra. 



237 

done during free time as a remunerative type of hobby, rather than 
as assigned labor. 80 

8. Domestic Service 

The specific inclusion of this category of labor in Article 50(e) 
merely permits the continuation of a practice that has been rather 
generally followed and that has rarely caused any difficulty, inasmuch 
as domestic services have never been construed as having a "direct 
relation with operations of war," even when such services are rendered 
to members of the armed forces of the Detaining Power. Prisoners of 
war have very generally been required to work in laundries and bak- 
eries of the armed forces of the Detaining Power and have been used 
in their messhalls as cooks, kitchen police, waiters, etc. As long as the 
domestic services are not required to be performed in an area where 
the prisoner of war will be exposed to the fire of the combat zone, 
which is specifically prohibited by the first paragraph of Article 23, 
the type of establishment in which he is compelled to perform the 
domestic services, and whether military or civilian, is not material. 81 

9. Public Utility Services Having No Military Character 
or Purpose 

Article 50 (f ) is the third and final usage of the term "military char- 
acter or purpose" in connection with prisoner-of-war labor. Its use 
here is particularly inept, inasmuch as it is difficult to imagine how 
public utility services such as gas, electricity, water, telephone, tele- 
graph, etc., can under any crcumstances be deemed to have a military 
character. 8 - With respect to military purpose, the conclusions previ- 
ously reached are equally applicable here. If the utility services are 
intended exclusively, or primarily, for military use, 83 they will have a 
military purpose and the Detaining Power is prohibited from com- 
pelling prisoners of war to work on them. Normally, however, the 
same public utility services will be used to support both military and 
civilian activities and personnel and should not be considered as having 
a military purpose. 



80 The right of the Detaining Power to assign prisoners of war to these occupa- 
tions (commercial business, arts and crafts) is, of course, unrestricted. 

81 Concerning the problem as to whether domestic service is "humiliating," see 
note 90 infra. 

82 In Pictet, Commentary 268, the statement is made that these public utility 
services have a military character "in sectors where they are under military ad- 
ministration." The present author finds it impossible to agree that the nature of 
the administration of these public utilities should determine their inherent char- 
acter. If this were so, then public utility services administered by the military 
authorities in an occupied area, as is normally the case, would be military in 
character, even though it was originally constructed for, and is then being used 
almost exclusively by, the civilian population of the occupied territory. 

8a As, for example, where mobile generators are connected solely to military in- 
stallations or equipment. 



238 

10. Limitations with Respect to Unhealthy, Dangerous, or 
Humiliating Work 

Article 52 of the 1949 Convention contains special provisions with 
respect to labor which is unhealthy, dangerous, or humiliating. These 
terms are not defined and it may be anticipated that their application 
will cause some difficulties and controversies. Nevertheless, the impor- 
tance of these provisions cannot be gainsaid. 

Under the first paragraph of Article 52 a prisoner of war may not 
be employed on unhealthy or dangerous work, "unless he be a volun- 
teer." Under the second paragraph of Article 52 a prisoner of war may 
not be assigned to labor which would be considered humiliating for a 
member of the armed forces of the Detaining Power. No differences 
can be perceived to have resulted from the use of the verb "employed 
on" in the first instance and the verb "assigned to" in the second. Ac- 
cordingly, it is believed that the omission of the clause "unless he be a 
volunteer" in the case of "humiliating" labor would preclude a Detain- 
ing Power from permitting prisoners of war to volunteer for labor 
which is considered to be humiliating by the members of its own armed 
forces. (Perhaps the draftsmen believed that there would be no vol- 
unteers for work of a humiliating nature and that such a clause would 
be mere surplusage.) 

Article 32 of the 1929 Convention forbade "unhealthy or dangerous 
work." After World War II this provision was stated to be declaratory 
of the customary international law of war. 84 In construing this provi- 
sion, the United States applied three separate criteria: first, the in- 
herent nature of the job (mining, quarrying, logging, etc.) ; second, 
the conditions under which it was to be performed (under a tropical 
sun, in a tropical rain, in a millpond in freezing weather, etc.) ; and, 
third, the individual capacity of the prisoner of war. 85 These criteria 
would be equally relevant in applying the substantially similar provi- 
sions of Article 52 of the 1949 Convention. 86 

There are numerous tables of experience factors available for deter- 
mining whether a particular job is unhealthy or dangerous and is, 



84 U.S. v. von Leeb (the High Command Case, 11 TWC 537.) 

85 Lewis & Mewha 112; McKnight, POW Employment 55. The latter continues 
with the following statement: "The particular task is considered, not the industry 
as a whole. The specific conditions attending each job are decisive. For example, 
an otherwise dangerous task may be made safe by the use of a proper appliance, 
and an otherwise safe job rendered dangerous by the circumstances in which the 
work is required to be done. Work which is dangerous for the untrained may be 
safe for those whose training and experience have made them adept in it." (The 
third criterion mentioned in the text, individual capacity, has already been dis- 
cussed. See pp. 218-221 supra.) 

86 In determining whether an industry was of a nature to require special study 
before prisoners of war were assigned to work in it, the Judge Advocate General 
of the United States Army rendered the following opinion (SPJGW 1943/10908, 
11 August 1943.) : 



239 

therefore, one upon which prisoners of war may not be employed. 
Nevertheless, there will very probably be borderline cases in which 
disputes may well arise as to the utilization of nonvolunteer prisoners 
of war. However, there will unquestionably be more jobs to be filled 
in clearly permissible categories than there will be prisoners of war 
available to fill them. Accordingly, the Detaining Power that is at- 
tempting to handle prisoners of war strictly in accordance with the 
provisions of the Convention can easily avoid disputes in this area by 
not using prisoners of war on labor of a controversial character. 

The last paragraph of Article 52 specifies that "[t]he removal of 
mines or similar devices shall be considered as dangerous labour." By 
this simple and unambiguous statement, the 1949 Diplomatic Confer- 
ence, after one of its most heated and lengthy discussions. 87 made it 
completely clear that the employment of prisoners of war on mine re- 
moval is prohibited unless they are volunteers. The compulsory use of 
prisoners of war on this type of work was one of the most bothersome 
problems of prisoner-of-war utilization of World War II, particularly 
after the termination of hostilities. 88 This problem should not arise in 
any future major international armed conflict, except in the context 
of whether or not the prisoners of war so engaged are true volunteers. 

The application of the prohibition against the assignment of prison- 
ers of war to work considered humiliating for members of the armed 
forces of the Detaining Power should cause few difficulties. 89 Cer- 
tainly, the existence or nonexistence of a custom or rule in this regard 
in the armed forces of the Detaining Power should rarely be a matter 



. . .If in particular industries the frequency of disabling injuries per million 
man-hours is : 

a. Below 28.0 — prisoner-of-war labor is generally available therein; 

b. Between 28.0 and 35.0 — the industry should be specifically studied, from 
the point of view of hazard, before assigning prisoner-of-war labor therein; 

c. Over 35.0 — prisoner-of-war is unavailable, except for the particular work 
therein which is not dangerous. 

It must be borne in mind that, as indicated in the quoted statement, even in an 
industry in which prisoners of war may be employed, such as one involving the 
production or extraction of raw materials, a particular industry or a particular 
job may fall within the ban of being of an "unhealthy or dangerous nature." Fair- 
child & Grossman 193-94. 

87 For the history and background of this problem and for the debate thereon 
at the 1949 Diplomatic Conference, see: 1 ICRC Report 334; 3 Final Record 70- 
71; 2A Final Record 272-73, 443-44, & 345; 2B Final Record 290-95 & 298-99; 
Pictet, Commentary 277-78. 

88 1 ICRC Report 333-34. 

89 In Pictet, Commentary 277, the following comment appears: "This rule has 
the advantage of being clear and easy to apply. The reference is to objective rules 
enforced by that [Detaining] Power and not the personal feelings of any indivi- 
dual member of the armed forces. The essential thing is that the prisoner con- 
cerned may not be the laughing-stock of those around him." 



240 

of controversy. 90 It is probable that, in the main, problems in this area 
will arise because the standard adopted is that applied in the armed 
forces of the Detaining Power rather than that applied in the armed 
forces of the Power of Origin. While this decision was indubitably the 
only one which the 1949 Diplomatic Conference could logically have 
reached, it is not unlikely that prisoners of war will find this difficult 
to understand and that there will be tasks which they will consider 
to be humiliating, even though the members of the armed forces of the 
Detaining Power do not, particularly where the prisoners of war come 
from a nation having a very high standard of living and are held by a 
Detaining Power which has a considerably lower living standard. 

E. CONDITIONS OF EMPLOYMENT 

We have so far considered the two aspects of prisoner-of-war labor 
that are peculiar to that status : ( 1 ) who may be compelled to work ; 
and (2) the fields of work in which they may be employed. Our discus- 
sion now enters the areas in which most nations have laws governing 
the general conditions of employment of their own civilian citizens — 
laws which, as we shall see, are often made applicable to the employ- 
ment of prisoners of war. 

1. General Working Conditions 

The first paragraph of Article 51 of the Convention constitutes a 
fairly broad code of working conditions. It provides : 

Prisoners of war must be granted suitable working conditions, 
especially as regards accommodation, food, clothing and equip- 
ment; such conditions shall not be inferior to those enjoyed by 
nationals of the Detaining Power employed in similar work ; ac- 
count shall also be taken of climatic conditions. 
These provisions, several of which derive directly from adverse ex- 
periences of World War II, are for the most part so elementary as to 
require little exploratory discussion. However, one major change in 
basic philosophy is worthy of note. The 1929 Convention provided, in 
Articles 10 (accommodations) and 11 (food and clothing), that the 



90 Although prohibitions against the use of prisoners of war on humiliating 
work were contained in Article 25 of the Declaration of Brussels and in Article 
71 of the Oxford Manual, there was no similar provision in the 1899 or 1907 
Hague, Regulations, nor in the 1929 Convention. Nevertheless, during World War 
II the United States recognized the prohibition against the employment of pris- 
oners of war on degrading or menial work as a "well settled rule of the custom- 
ary law of nations" (McKnight, POW Employment 54), and even prohibited their 
employment as orderlies for other than their own officers. Lewis & Mewha 113. 
While this latter type of work is prohibited for personnel of the United States 
Army, it is believed that the prohibition is based upon policy rather than upon 
the "humiliating" nature of an orderly's functions. Apparently this is settled 
policy for the United States as the same rule was included in U.S. Army Regs. 
633-50, para. 209c (2), issued in 1963. 



241 

minimum standards for prisoners of war in these areas should be 
those of ''troops at base camps of the Detaining Power." 01 These stan- 
dards were equally applicable to working prisoners of war. The first 
paragraph of Article 25 of the 1949 Convention contains an analogous 
provision with respect to accommodations for prisoners of war gen- 
erally 92 — but the provisions of the first paragraph of Article 51 quoted 
above make it abundantly clear that, as to lodging, food, clothing, and 
equipment of working prisoners of war, the minimum standard is no 
longer that of base troops of the Detaining Power, but is that of 
"nationals of the Detaining Power employed in similar work." More- 
over, Article 26, which is concerned with prisoner-of-war food gen- 
erally, contains, in its second paragraph, a specific provision under 
which working prisoners of war must be supplied "with such addi- 
tional rations as are necessary for the labor on which they are em- 
ployed"; 03 and Article 27, which is concerned with prisoner-of-war 
clothing generally, contains, in its second paragraph, a specific provi- 
sion under which working prisoners of war "shall receive appropriate 
clothing, whenever the nature of the work demands." While all of 
these provisions of Articles 25, 26, 27, and 51 of the Convention actu- 
ally represent a continuation of adherence to local national standards 
for working prisoners of war, it would appear that the national stan- 
dards now applicable (civilian nationals in similar work) will be higher 
than those which were applicable under the 1929 Convention (troops 
at base camps) inasmuch as workers in many industries are frequently 
a favored class under wartime conditions. 94 

With regard to a somewhat similar provision contained in the second 
paragraph of Article 51, less optimism appears to be warranted. This 
paragraph, making applicable to working prisoners of war "the na- 
tional legislation concerning the protection of labor and, more par- 



!)1 See pp. 124-131 supra 

92 See p. 124 supra. 

iXi See p. 129 supra. During World War II, prisoners-of-war labor in the Soviet 
Union was fed "in accord with the output of work." Olson, Soviet Policy 48. If 
the basic food requirements of Article 26 and 51 are met, there appears to be no 
prohibition against the issuance of additional items of food as an incentive bonus. 
The difficulty is that under this system the basic premise rarely exists. Thus, the 
same author states that in the Soviet Union work quotas were established and 
"food. . .received was in proportion to quotas filled." Ibid., 46. 

94 It has been asserted that not only must the living conditions of working 
prisoners of war not be inferior to those of local civilian workers, but also that 
this provision may not "prevent the application of the other provisions of the Con- 
vention if, for instance, the standard of living of citizens of the Detaining Power 
is lower than the minimum standard required for the maintenance of prisoners 
of war." Pictet, Commentary 271. While the draftsmen of the Convention may well 
have intended to establish two separate standards in this area, it is difficult to 
believe that any belligerent will provide prisoners of war with a higher standard 
of living than that to which its own civilian citizens have been reduced as a result 
of a rigid war economy. 



242 

ticularly, the regulations for the safety of workers/' was the result 
of a proposal made by a delegate of the Soviet Union at the 1949 Dip- 
lomatic Conference, which received the immediate support of the 
United States and others. 95 This support was undoubtedly premised 
on the assumption that, if adopted, the proposal would increase the 
protections afforded to working prisoners of war. 96 Second thoughts 
indicate that this provision may constitute a basis for reducing the 
protection which it was intended to afford prisoners of war engaged 
in dangerous employments. The ICRC has deemed it necessary to point 
out that national standards may not here be applied in such a manner 
as to reduce the minimum standards established by the Convention. 97 
It now appears unfortunate that the Diplomatic Conference adopted 
the Soviet proposal rather than the suggestion of the representative of 
the International Labor Organization that it be guided by the inter- 
nationally accepted standards of safety for workers contained in inter- 
national labor conventions then already in being. 98 Moreover, the safety 
laws and regulations are not the only safety measures which are tied 
to national standards. The third paragraph of Article 51 requires 
that prisoners of war receive training and protective equipment ap- 
propriate to the work in which they are to be employed "similar to 
those accorded to the nationals of the Detaining Power." 99 This same 
paragraph likewise provides that prisoners of war "may be submitted 
to the normal risks run by these civilian workers." Inasmuch as the 
test as to what are "normal risks" is based upon the national stan- 
dards of the Detaining Power, this provision, too, would appear to be 
a potential breeding ground for disagreement and dispute — particu- 
larly as the "normal risks" which civilian nationals of the Detaining 
Power may be called upon to undergo under the pressures of a wartime 



95 2A Final Record 273-75 & 446-47. 

96 It should be noted that the International Labour Organization proposed an 
additional article which would have allowed Detaining Powers to employ women 
prisoners of war only in accordance with the principles applicable for employed 
women nationals. Diplomatic Conference Documents, Memorandum by the Inter- 
national Labour Organization, Document No. 7, para. 9. This proposal was op- 
posed by the United Kingdom (ibid., Observation 11) and the United States (ibid., 
Observations 13-14) on the ground that the national standard might be unsatis- 
factory, or even nonexistent. The proposal was not discussed at the 1949 Diplo- 
matic Conference. 

97 Pictet, Commentary 271-72. 
9 » 2A Final Record 275. 

99 It could be argued that a proper construction of the grammer of this provi- 
sion makes only the protective equipment, and not the training, subject to national 
standards. However, this is debatable, and, even if true, it would merely result in 
the application of an international standard in the very area where the national 
standard would probably be acceptable. 



243 

economy will probably bear little relationship to the risks permitted 
under normal conditions. 100 

The reference to the climatic conditions under which labor is per- 
formed, contained in the first paragraph of Article 51 quoted above, 
is one of the provisions deriving from the experiences of World War 
II. 101 The second paragraph of Article 9 of the 1929 Convention pro- 
vided generally that prisoners of war captured "where the climate is 
injurious for persons coming from temperate climates, shall be trans- 
ported, as soon as possible, to a more favorable climate." 102 It is well 
known that in a large number of cases this was not done. The second 
paragraph of Article 22 of the 1949 Convention contains a somewhat 
similar general provision concerning physical transfers; but it was 
recognized that, despite the best of intentions, belligerents will not 
always be in a position to arrange for the physical transfer of pris- 
oners of war from the land areas in which they are captured to one 
with a climate comparable to that of their homeland. Accordingly, the 
1949 Diplomatic Conference wrote into the Convention the quoted ad- 
ditional admonition with respect to climatic conditions and prisoner- 
of-war labor. It follows that, where a Detaining Power cannot (at 
least for the time being) transport prisoners of war out of an area 
of an unhealthy climate — whether tropical or arctic — it must, if it 
desires to utilize the labor of the prisoners of war in that area even 
temporarily, make due allowances for the climate, giving them prop- 
er clothing, 103 the necessary protection from the elements, appropriate 
working periods, etc. 

Article 51 of the 1949 Convention concludes these provisions with 
a prohibition against the rendering of working conditions more ardu- 
ous as a disciplinary measure. 104 In other words, the standards for 
working conditions, be they international or national,, established by 



100 It must be noted, however, that the "normal risks" provision of the third 
paragraph of Article 51 is specifically made subject to the restrictive provisions 
of Article 52, concerning- which see pp. 238-240 supra. 

101 The I.M.T.F.E. (at 1002) mentioned "forced labor in tropical heat without 
protection from the sun" as one of the atrocities committed against prisoners of 
war by the Japanese. Concerning the violations of international law involved in 
the construction of the Burma-Siam railroad, see I.M.T.F.E. 1049-57; Bergamini, 
Japan's Imperial Conspiracy 968-69 & 971. The motion picture "The Bridge on 
the River Kwai" graphically portrayed the problem. 

10 - See pp. 121-123 supra. 

103 Article 27 specifically provides that in issuing clothing to prisoners of war, 
without regard to the work at which they are employed, the Detaining Power 
". . .shall make allowance for the climate of the region where the prisoners are 
detained." The requirements in this regard of the first paragraph of Article 51 
are probably more extensive. Pictet, Commentary 271. 

104 Article 89 contains an enumeration of the punishments which may be admin- 
istered to a prisoner of war as a disciplinary measure for minor violations of 
applicable rules and regulations. 



244 

the Convention, may not be disregarded in the administration of dis- 
ciplinary punishment to a prisoner of war, and it is completely im- 
material whether the act for which he is being punished occurred in 
connection with, or entirely apart from, his work. Thus, a Detaining 
Power may not lower safety standards, disregard requirements for 
protective equipment, lengthen working hours, withhold required ex- 
tra rations, etc., as punishment for misbehavior. On the other hand, 
"fatigue details" of not more than two hours a day, or a monetary 
fine, or the withdrawal of extra privileges, all of which are authorized 
as disciplinary punishment by Article 89, undoubtedly could be im- 
posed, as they obviously do not fall within the ambit of the prohibi- 
tion; and the extra rations to which prisoners of war are entitled 
under Article 26, when they are engaged in heavy manual labor, could 
undoubtedly be withheld from a prisoner of war who refuses to work, 
inasmuch as he would no longer meet the requirement for entitlement 
to such extra rations. 

2. Labor Detachments 

In the usual arrangement contemplated by the Convention for the 
utilization of the labor of prisoners of war, each working day the 
prisoners of war go from their camp to their place of employment, 
returning to the camp upon the completion of their working period. 
However, another arrangement is authorized by the Convention — the 
so-called labor detachment. Thus, where the place at which the work 
is to be accomplished is too far from any prisoner-of-war camp to 
permit the daily round trip, a labor detachment may be established. 
These labor detachments, which were widely used during World War 
II, 105 are merely miniature prisoner-of-war camps, established in order 
to meet more conveniently a specific labor requirement. Article 56 of 
the 1949 Convention requires that they be organized and administered 
in the same manner as, and as a part of, a prisoner-of-war camp. 
Prisoners of war making up a labor detachment are entitled to all 
the rights, privileges, and protections which are available under the 
Convention to prisoners of war assigned to, and living in, a regular 
prisoner-of-war camp. 106 However, the fact that local conditions ren- 



105 At the 1949 Diplomatic Conference the representative of the ICRC (Wel- 
helm) stated that experience had indicated that the majority of all prisoners of 
war were maintained in labor detachments. 2A Final Record 276. This is confirmed 
by the series of articles which appeared in the International Labour Review dur- 
ing the course of World War II. See Anon., Conditions of Employment 187; Anon.. 
Employment in Germany 318; Anon., Employment in Great Britain 191; Mc- 
Knight, POW Employment 49; and Anon., Employment in Canada 336. 

10(5 In addition to the requirements of the second paragraph of Article 56 for 
the observance of the provisions of the Convention in labor detachments, specific 
provisions as to these detachments are contained in Article 33(a) (medical serv- 
ices), 35 (spiritual services), and 79 and 81 (prisoners' representatives), among 
others. 



245 

der it impossible to make a labor detachment an exact replica of the 
prisoner-of-war camp of which it is a satellite does not necessarily 
indicate a violation of the Convention. As long as the provisions of 
the Convention are observed with respect to the particular labor de- 
tachment, it must be considered to be properly constituted and op- 
erated. 107 

One other point with respect to labor detachments is worthy of note. 
While Article 39 requires that prisoner-of-war camps be under the 
"immediate authority of a responsible commissioned officer belonging 
to the regular armed forces of the Detaining Power," 108 there is no 
such requirement as to labor detachments. Although Article 56 pro- 
vides that each labor detachment is under the authority of the com- 
mander of the prisoner-of-war camp to which it is administratively 
attached, and this camp commander will, of course, be a commissioned 
officer, there does not appear to be any prohibition against the assign- 
ment of a noncommissioned officer as the commander of the labor 
detachment in place. In view of the large number of labor detach- 
ments which will probably be established by each belligerent, it is 
safe to assume that the great majority of them will be under the 
immediate command of noncommissioned officers. 

A situation under which the utilization of prisoner-of-war labor 
will usually, although not necessarily, require the establishment of 
labor detachments is where their services are being used by private 
individuals or business organizations. This is the method by which 
most of the many prisoners of war engaged in agriculture (and em- 
ployed in large private industrial concerns) will probably be admin- 
istered. During World War II, prisoners of war performing labor 
under these circumstances were frequently denied the basic living 
standards guaranteed to them by the provisions of the 1929 Conven- 
tion. 109 The first paragraph of Article 57 of the 1949 Convention 
specifically provides not only that the treatment of prisoners of war 
working for private persons "shall not be inferior to that which is 
provided for by the present Convention," but also that the Detaining 
Power, its military authorities, and the commander of the prisoner- 
of-war camp to which the labor detachment is attached, all continue 



107 For example, Article 25 requires that billets provided for prisoners of war 
must be adequately heated. The fact that the parent prisoner-of-war camp has 
central heating, while the billets occupied by the prisoners of war assigned to a 
satellite labor detachment have separate, but adequate heating facilities, does not 
constitute a violation of the Convention. 

108 See pp. 163-164 supra. 

109 The third paragraph of Article 56 requires the prisoner-of-war camp com- 
mander to maintain records of the labor detachments dependent on his camp and 
to make these available to the Protecting Power and to the ICRC. This is to ensure 
that there are no "lost" labor detachments, the members of which are completely 
denied the benefits of the Convention, as occurred during World War II. 



246 

to be responsible for their maintenance, care, and treatment; 110 and 
the second paragraph of Article 57 specifically provides that these 
prisoners of war have the right to communicate with the prisoners' 
representative in the prisoner-of-war camp. 111 It remains to be seen 
whether the changes made in the provisions relating to the mainte- 
nance of labor detachments will accomplish their purpose of procur- 
ing for prisoners of war in labor detachments the same treatment to 
which they are entitled in the prisoner-of-war camp itself. 112 

One problem which may arise in the use of prisoner-of-war labor 
in labor detachments by private persons is that of guarding the pris- 
oners of war. Frequently, the Detaining Power will provide military 
personnel for this purpose. When it does so, the problems presented 
are no different from those which arise at the prisoner-of-war camp 
itself. If paroles have been given to and accepted by the prisoners 
of war concerned, there are likewise no problems peculiar to the 
situation. 113 But suppose that civilian guards are used. What authority 
do they have to compel a prisoner of war to work if he refuses to 
do so? Or to prevent a prisoner of war from escaping? And to what 
extent may they use force on a prisoner of war? 

If a prisoner of war assigned to work for a private employer re- 
fuses to do so, the proper action to take would unquestionably be to 
notify the military commander of the prisoner-of-war camp to which 
the labor detachment is attached. The latter is in a position to have 



110 The unique references to "military authorities" contained in Article 56 and 
57 were undoubtedly included in order to make it beyond dispute that, like the 
camp commander, the appropriate military authorities of the Detaining Power 
were not relieved from responsibility when the prisoner-of-war labor detachments 
are maintained by and at the sites selected by the civilian "employer" for whom 
the members of the detachments are working". 

111 Concerning the prisoners' representative in labor detachments, see pp. 298 
and 300-301 infra. The latter provision cited in the text was included in order 
to enable the members of the labor detachments to register complaints concerning 
their treatment should they believe that it is in any respect below Convention 
standards. Of course, complaints may also be made to the representatives of the 
Protecting Power, who may visit these labor detachments whenever they so desire 
(Articles 56 and 126), but these latter are not always readily available, while the 
prisoners' representatives are. During World War II both the United Kingdom 
and the United States provided for inspections by their own military authorities 
of the treatment of prisoners of war who were members of labor detachments 
working for private persons. Anon., Employment in Great Britain 192; Mason, 
German Prisoners of War 213. 

112 It should be mentioned that even though prisoners of war may be members of 
a labor detachment working for a private individual, that is merely a contractual 
relationship between the Detaining Power and the private individual as a pur- 
chaser of labor services. It does not affect the status of the prisoners of war and 
there is no contractual relationship between the private individual and the pris- 
oners of war. But see note 11-363 supra. 

113 Concerning parole, see pp. 398-402 infra. 



247 

an independent investigation made and to impose disciplinary pun- 
ishment or to have charges preferred, as he deems appropriate. 

If a prisoner of war assigned to work for a private employer who 
is not provided with military guards attempts to escape, the authority 
of the civilian guards is extremely limited. That they may use rea- 
sonable force, short of firearms, seems fairly clear. That they may 
use firearms to prevent escapes is highly questionable. 114 Detaining 
Powers would be well advised not to assign any prisoner of war to this 
type of labor, where he is to be completely unguarded or guarded only 
by civilians, unless the prisoner of war has accepted parole, or unless 
the Detaining Power has evaluated the likelihood of attempted escape 
by the particular prisoners of war and has determined to take a cal- 
culated risk in their cases. 

3. Working Hours, Holidays, and Vacations 

Article 53 of the 1949 Convention covers all aspects of the time 
periods of prisoner-of-war labor. As to the duration of daily work, 
the first paragraph of Article 53 provides that (1) this must not be 
excessive; (2) it must not exceed the work hours for civilians in the 
same district; and (3) travel time to and from the job must be in- 
cluded in the computation of the workday ; and the second paragraph 
of Article 53 provides that (4) a rest of at least one hour (longer, 
if civilian nationals receive more) must be allowed in the middle of 
the day. 

The prohibition against daily labor which is "excessive" in duration 
is the same prohibition which had been included in Article 30 of the 
1929 Convention. Here again, we have the application of a national 
standard, and in an area in which such a standard had proved to be 
disadvantageous to prisoners of war during World War II. 115 The 
Greek Government had proposed the establishment of an international 
standard — a maximum of 8 hours a day for all work except agricul- 
ture, where a maximum of 10 hours would have been authorized. 116 



114 In Pictet, Commentary 296, the argument is made, and with considerable 
merit, that escape is an act of war and that only military personnel of the De- 
taining Power are authorized to respond to this act of war with another act of 
war — the use of weapons against a prisoner of war. This theory finds support in 
the safequards surrounding the use of weapons against prisoners of war, espec- 
ially those involved in escapes, found in Article 42 of the Convention. See pp. 403- 
404 infra. 

H5 2A Final Record 275. 

116 Diplomatic Conference Documents, Memorandum by the Greek Government, 
Document No. 11, at 9. 



248 

This proposal was overwhelmingly rejected. 117 As has already been 
pointed out with regard to other problems, where a national rather than 
an international standard has been adopted, very few nations at war 
could afford to grant to prisoners of war more favorable working 
conditions than those accorded to their own civilian citizens. 118 With 
respect to hours of daily work, it must be noted, too, that the limita- 
tions contained in the Article cannot be circumvented by the adoption 
of piecework, or some other task system, in lieu of a stated number 
of working hours, the third paragraph of Article 53 of the Convention 
specifically prohibiting the rendering of the length of the working day 
excessive by the use of this method. 119 

The provision for a midday rest of a minimum of one hour, con- 
tained in the second paragraph of Article 53, is new 120 and is subject 
to the national standard only if the latter is more favorable to the pri- 
soner of war than the international standard established by the Con- 
vention. In other words, it may be necessary for the Detaining Power 
to increase the midday rest period given to prisoners of war if its own 
civilian workers receive a rest period in excess of one hour, but it may 
not, under any circumstances, be shortened to less than one hour. 

The second paragraph of Article 53 further provides that prisoners 



11" 2B Final Record 300. It is, of course, impossible to identify the specific point 
at which further work becomes "excessive." It has been suggested that the normal 
ILO limits of 8 hours a day and 48 hours a week should be applied. Pictet, Com- 
mentary 280. However, this is exactly what the 1949 Diplomatic Conference re- 
fused to approve. During World War II the maximum daily hours of work for 
prisoners of war in the United States was 10, including travel time. Lewis & 
Mewha 79. 

118 The 1947 Conference of Government Experts had originally considered set- 
ting maximum working hours, but had finally decided against so doing because 
it would be "discrimination in favor of PW, which would not be acceptable to the 
civilian population of the DP." 1947 GE Report 176. As stated in Anon., Condi- 
tions of Employment 194: "The prisoner [of war] cannot expect better treatment 
than the civilian workers of the detaining Power. . . .His fate depends upon the 
extent to which the standards of the country where he is imprisoned have been 
lowered through the exigencies of the war." 

119 During World War II many Detaining Powers used the piece or taskwork 
method of controlling prisoner-of-war labor. Pictet, Commentary 282; Anon., Em- 
ployment in Canada 337. (In the United States the piecework system was used, 
but to control pay rather than work hours. Lewis & Mewha 120-21. As long as 
the pay does not drop below the minimum prescribed in Article 62, there would 
appear to be no objection to this procedure.) Even when a Detaining Power was 
faithfully attempting to comply with the worktime provisions of Article 30 of the 
1929 Convention, prisoners of war were sometimes, out of necessity, kept overtime 
and usually received extra work pay for this. Anon., Conditions of Employment 
183. This may present a problem for the future, inasmuch as ultimate settlement 
of prisoner-of-war accounts are now to be made by the Power of Origin, not by 
the Detaining Power which benefited from the overtime. See p. 205 supra. 

120 This is the only provision with respect to daily hours of work which was 
not contained in almost identical words in Article 30 of the 1929 Convention. 



249 

of war shall be entitled to a 24-hour rest every week, preferably on 
Sunday, "or the day of rest in their country of origin." Except for the 
quoted phrase, which was added at the request of Israel but which 
should be of equal importance to the pious Moslem, a similar provision 
was contained in Article 30 of the 1929 Convention. This provision is 
not subject to national standards, whether the national standard is 
more liberal or more restrictive. 121 And finally, Article 53 grants to 
every prisoner of war who has worked for one year "a rest of eight 
consecutive days" with pay. This provision is new and is of a nature to 
create minor problems, as, for example, whether normal days of rest 
are excluded from the computation of the eight days, what activity is 
permitted to the prisoner of war during his "vacation," and what he 
may be required to do during this period. However, despite these ad- 
ministrative problems, the provision should prove a great boon to every 
individual who undergoes a lengthy period of detention as a prisoner 
of war. 

4. Compensation and Other Monetary Benefits 

We have already had occasion to review the problem of "working 
pay" — the compensation to which a prisoner of war is entitled under 
the provisions of the 1949 Convention for the work performed by him 
in his capacity as a prisoner of war. 12 - However, there is one other 
aspect of the compensation problem which it is appropriate to con- 
sider at this point — compensation for disabilities sustained by prison- 
ers of war as a result of work-connected accidents or disease. What 
is the lot of the prisoner of war who is the victim of an industrial 
accident or contracts an industrial disease and is thereby incapaci- 
tated, either temporarily or permanently? Does he receive any type 
of compensation, and if so, what, when, from whom,, and how? 

The 1899 and 1907 Hague Regulations were silent on this problem. 
The multilateral prisoner-of-war agreement negotiated at Copenhagen 
in 1917, the Final Act of the Conference of Copenhagen, adopted a 
Russian proposal which placed upon the Detaining Power the same 



121 N or was jt subject to national standards in Article 30 of the 1929 Conven- 
tion, but the Germans refused to accord prisoners of war a weekly day of rest 
on the ground that the civilian population did not receive it. Janner, Puissance 
protectrice 54. German employers devised the system of "shadow gangs," termed 
the "clearest cases of violations" of the Sunday rest provision that occurred dur- 
ing World War II. 1 ICRC Report 329. A small number of German workers would 
work on Sunday with a large number of prisoners of war — but, while the prison- 
ers of war were compelled to work every Sunday, the German workers rotated and 
were called to such work only at long intervials. The German military authorities 
forbade this practice in 1941 (German Regulations No. 5, para. 9), but a directive 
issued in 1944 (German Regulations No. 44, para. 822) indicates that a major 
relaxation of the earlier order had occurred. See also Anon., Employment in Ger- 
many 323. The Russians, not bound by the 1929 Convention, gave Sunday off in 
theory but not in practice. Anon., POW in Russia 8. 

122 See pp. 201-205 supra. 



250 

responsibility in this regard that it had toward its own citizens ; but 
the 1917 Agreement between Great Britain and Germany provided 
merely that the Detaining Power should provide the injured prisoner 
of war with a certificate as to his occupational injury. 123 The pro- 
cedure adopted at Copenhagen was subsequently incorporated into 
Article 27 of the 1929 Convention, and in 1940, after some abortive 
negotiations with the British, Germany enacted a law implementing 
this procedure. 124 The United States subsequently established this 
same policy, 125 but the United Kingdom considered that it was required 
only to furnish the injured prisoner of war all required medical and 
other care. 126 

Inasmuch as no payments were ever made to injured prisoners of 
war by the former Detaining Powers after their repatriation, 127 it is 
not surprising that in redrafting the pertinent provisions in formu- 
lating the policies for the 1949 Convention, the procedure specified in 
the 1929 Convention was replaced with one more nearly resembling 
that which had been adopted in the 1917 bilateral agreement between 
Great Britain and Germany. 128 The procedure so established is con- 
tained in the overlapping provisions of Articles 54 and 68. 129 When a 
prisoner of war sustains an injury as a result of a w r ork-connected 
accident, or incurs an industrial disease, the Detaining Power has the 
obligation of providing him with all required care — medical, hospital, 
and general maintenance — during the period of his disability and 



123 Flory, Prisoners of War 79-80. The French (and the Swiss) had still a 
different approach: upon repatriation, prisoners of war who had suffered indus- 
trial accidents were to be treated as wounded combatants. Rosenberg, Internation- 
al Law concerning Accidents to War Prisoners Employed by Private Enterprises, 
36 AJ.I.L. at 295 & 296. 

124 Lauterpacht, Problem 373. Lauterpacht labels the negotiations as "elabor- 
ate" and as "concerning the relatively trivial question of the interpretation of 
of Article 27." 

V25POW Circular No. 1, paras. 91 & 92; McKnight, POW Employment 63. For 
a postwar decision increasing the rate of disability compensation, see JAGA 1950/ 
2239, 13 July 1950. 

128 Lauterpacht, Problem 373 n.2. 

127 Lewis & Mewha 156. 

128 In the British Manual para. 185, note 1, the statement is made that during 
the World War II negotiations the United Kingdom "considered that its domestic 
workmen's compensation legislation was too complex and so bound up with the 
conditions of free civilian workmen as to make it impracticable to apply it to pris- 
oners of war." That position has become no less valid with the passing of the 
years since the end of that war. 

129 This redundancy was discussed at some length at the 1949 Diplomatic Con- 
ference, with the Soviet Union taking the position that there was unnecessary 
duplication and the United Kingdom taking the position that Article 68 added 
something to Article 54. 2A Final Record 550-51. While Article 68 does contain 
data regarding the contents of the certificate to be furnished by the Detaining 
Power, there does not appear to be any reason why this could not have been 
merged into Article 54. 



251 

his continuation in the status of a prisoner of war. 130 The only other 
obligation of the Detaining Power is to provide the prisoner of war 
with a statement, properly certified, "showing the nature of the injury 
or disability, the circumstances in which it arose and particulars of 
medical or hospital treatment." Also, a copy of this statement must 
be sent to the Central Prisoners of War Agency, thus ensuring its 
permanent availability. 

If a prisoner of war desires to make a claim for compensation while 
still in the prisoner-of-war status, he may do so, but his claim will 
be addressed to his Power of Origin, not to the Detaining Power, 
transmittal being through the medium of the Protecting Power. 131 
The Convention makes no provision for the procedure to be followed 
beyond this point, probably for the reason that the problem is then 
a domestic one, involving solely the relations between the Power of 
Origin and a member of its own armed forces, which would obviously 
be inappropriate for inclusion in an international convention. It may 
well be that, in the long run, the present policy, by transferring ulti- 
mate liability to the Power of Origin, will prove of more value to 
the disabled prisoner of war than the apparently more generous policy 
contained in the 1929 Convention. 132 

It must be pointed out, however, that in one respect the procedure 
thus adopted by the 1949 Convention contains an obvious injustice: 
there is no provision entitling the prisoner of war who suffers a work- 
connected disability to continue to receive credits for working pay. 
While it is acceptable, and perhaps even preferable, to place ultimate 
responsibility on the Power of Origin for compensating the prisoner 
of war for his industrially caused disability, no reason can be per- 
ceived for relieving the Detaining Power not only of this liability, but 
even of that of the continued payment to the disabled prisoner of war 



130 Articles 40 and 95 of the Fourth (Civilians) Convention place upon the De- 
taining Power the responsibility of providing "compensation for occupational ac- 
cidents and diseases." The variation between these provisions and those of Arti- 
cle 54 of the Prisoner-of-War Convention was noted by the Coordination Commit- 
tee of the 1949 Diplomatic Conference (2B Final Record 149), but Committee II 
(Prisoners of War) determined that such a provision was not necessary for pris- 
oners of war. 2A Final Record 402. 

131 It has been suggested that "since under Article 51, paragraph 2, he [the 
prisoner of war] is covered by the national legislation [of the Detaining Power] 
concerning the protection of labour," a prisoner of war disabled in an industrial 
accident or by an industrial disease would, while still a prisoner of war, be en- 
titled to benefit from local workmen's compensation laws. Pictet, Commentary 
287. Is is believed that the application of this general provision of the Convention 
has been restricted in this area by the specific provisions of Article 54 and 68. 

132 See Anon., Conditions of Employment 182. 



252 

of the pittance which constitutes working pay. 133 The French delegate 
at the 1949 Diplomatic Conference raised the point and suggested that 
disabled prisoners of war should receive the Detaining Power's na- 
tional rate of disability compensation as long as they remained dis- 
abled and prisoners of war. 134 Perhaps he was seeking too much — 
but, in any event, no action was taken on his suggestion and the pris- 
oner of war disabled in an industrial accident or by an industrial 
disease will be at the mercy of the Detaining Power in this regard. 135 

5. Grievance Procedures 

In general, any prisoner of war who believes that the right guaran- 
teed to him by the various provisions of the 1949 Convention are, in 
any manner whatsoever, being violated in connection with his uti- 
lization as a source of labor, would have the right to avail himself 
of any of the channels of complaint established by the Convention: 
the representatives of the Protecting Power, the prisoners' represen- 
tative, or, perhaps, the representatives of the International Commit- 
tee of the Red Cross. 136 Nevertheless, the 1949 Diplomatic Conference 
felt it advisable to include in the second paragraph of Article 50, fol- 
lowing the listing of the classes of authorized labor, a specific provision 
permitting prisoners of war to exercise their right of complaint should 
they consider that a particular work assignment is in a prohibited 
area. 137 It is somewhat difficult to perceive the necessity for this pro- 
vision, or that it adds anything to the general protection otherwise 
accorded to the prisoner of war by the appropriate provisions of the 
Convention. In fact, the danger always exists that by specific provi- 
sions such as this the draftsmen may have unwittingly diluted the 
effect of the general protective provisions of this nature in areas 
where no specific provisions have been included. 

6. Special Agreements 

It would not be appropriate to leave the discussion of the utilization 
of prisoner-of-war labor without at least passing reference to the pos- 
sibility of special agreements in this field between the opposing bellig- 
erents. Strangely enough, despite the fact that prisoner-of-war labor 
has been the subject of many special agreements, or of attempts to 



133 During World War II the United States paid prisoners of war injured in 
industrial accidents one-half (40 cents) of the regular work payments during the 
period of disability. Tollefson, Enemy Prisoners of War 61; Rich, Brief History 
433. 

134 2A Final Record 275-76. 

135 It should be noted that under Article 114 prisoners of war who are injured 
in accidents are eligible for early repatriation under the provisions of Article 109- 
117, inclusive, of the Convention. See p. 412 infra. 

136 F or a discussion of complaints by prisoners of war, see pp. 285 and 301-302 
infra. 

137 For examples of prisoner-of-war complaints on this subject during World 
War II, see text in connection with note 11-275 supra. 



253 

negotiate special agreements, between opposing belligerents during 
both World War I and World War II, 138 and despite numerous specific 
references elsewhere in the 1949 Convention to the possibility of spe- 
cial agreements, nowhere in the articles of the 1949 Convention con- 
cerned with prisoner-of-war labor is there any reference made to this 
subject. Nevertheless, such agreements, provided they do not ad- 
versely affect the rights elsewhere in the Convention guaranteed to 
prisoners of war, may be negotiated under the provisions of the first 
paragraph of Article 6 of the Convention, as well as under the inher- 
ent sovereign powers of the belligerents. 139 

F. CONCLUSIONS 

Utilization of prisoner-of-war labor means increased availability of 
manpower and a reduction in disciplinary problems for the Detaining 
Power, and an active occupation, better health and morale, and, per- 
haps, additional purchasing power for the prisoners of war. It is 
obvious that both sides have much to gain if all of the belligerents 
comply with the labor provisions of the 1949 Convention. 

On the whole, it is believed that these labor provisions represent an 
improvement in the protection to be accorded prisoners of war in any 
future major international armed conflict. True, they contain ambi- 
guities and compromises which can serve any belligerent which is so 
minded as a basis for justifying the establishment of policies which 
are contrary to the best interests of the prisoners of war detained by 
it and which are probably contrary to the intent of the drafters. How- 
ever, if the Convention is to be at all meaningful, it is necessary to 
start from the premise that the nations which are Parties to it will, 
to the maximum extent of their capabilities, implement it as the hu- 
manitarian charter which it was intended to be. And in any event, 
two factors are always present which tend to call forth this type of 
implementation : the presence of the Protecting Power and the doc- 
trine of reciprocity. 140 Information as to the manner of interpreting 
and implementing the provisions of the Convention by a belligerent is 
made known to the other side through the activities of the Protecting 
Power and thus can become public knowledge, with the resulting effect, 
good or bad, on world public opinion. 141 Policies which, while perhaps 
complying with a strict interpretation of the provisions of the Conven- 



138 See, e.g., the World War I agreements listed in note 1-39 supra; and the 
World War II agreements discussed in Lauterpacht, Problem 373. 

139 Concerning special agreements between belligerents, see pp. 84-86 supra. 

By becoming Parties to the Convention they have given up their sovereign right 
to enter into special agreements adversely affecting the rights guaranteed to 
prisoners of war by the Convention. 

140 The activities of humanitarian organizations such as the ICRC are likewise 
a major deterrent to the improper application of the Convention. 

141 Concerning the effect of world public opinion, see p. 33 supra. 



254 

tion, are obviously overly restrictive in an area where a more human- 
itarian attitude appears justified, and could easily be employed, will 
undoubtedly result in the adoption of an equally or even more restric- 
tive policy by the opposing belligerent. Such retorsion can easily lead 
to charges of reprisals, which are outlawed, and thus create a situa- 
tion which, whether or not justified, can result only in harm to all of 
the prisoners of war held by both sides. While there were nations 
which, during World War II, appeared to be disinterested in the effect 
that their treatment of prisoners of war was having on the treatment 
being received by their own personnel detained by the enemy, it is to 
be hoped that in any future international armed conflict, even one 
which represents the ". . . destruction of an ideology . . .," 142 at the 
very least, concern for the fate of its own personnel will cause each 
belligerent to comply fully with the labor provisions of the 1949 Con- 
vention. 



142 Statement of German General Keitel, quoted in I.M.T. 475. 



CHAPTER IV 
PROTECTIVE AGENCIES 

A. INTRODUCTORY 

Prisoners of war have always been, and continue to be, at the 
complete mercy of the Detaining Power. The rules which have evolved 
with respect to prisoners of war have uniformly had the objective of 
affording them protection against the all-powerful Detaining Power ; 
but rules for the protection of prisoners of war are of value only 
if there are methods of ensuring compliance therewith. 1 Over the 
years a number of institutions have come into existence for the ac- 
complishment of this purpose, including: (1) the Protecting Power; 
(2) the prisoners' representative; (3) the International Committee 
of the Red Cross; and (4) other international humanitarian organ- 
izations. While some of these institutions have other functions, a major 
function of each, and the one which will concern us here, is to ensure 
that the prisoners of war receive the full protection accorded to them 
by the Convention. We shall endeavor to ascertain the nature of each 
of these institutions, the powers that have been allocated to them, and 
the manner in which those powers are exercised. 

B. THE PROTECTING POWER 2 

1. Historical 

The earliest indication of what we now term the Protecting Power 
probably appeared in the Capitulations of the Ottoman Empire of 



1 We have already discussed the problem of compliance in the broad sense — the 
acceptance of the applicability of the Convention generally in the international 
armed conflict in which a Power is engaged. See pp. 26-34 supra. Here, we are 
concerned with ensuring compliance with the specifics of the Convention. 

2 A Protecting Power is a State which has accepted the responsibility of protect- 
ing the interests of a second State in the territory of a third, with which, for some 
reason, such as war, the second State does not maintain diplomatic relations. 1973 
Draft Additional Protocol, Article 2(d), at 3; Article 2(c), 1977 Protocol I; Sior- 
det, Scrutiny 3. All three States must agree before the Prelecting Power may 
serve as such. Heckenroth, Puissances protectrices 27-31, & 64; Draper, Imple- 
mentation 46-47. In the terminology which we are using here, the second State 
is the Power of Origin and the third State is the Detaining Power. If the Protect- 
ing Power is acting as such when no state of war exists, the State in whose terri- 
tory it is acting is more properly called the Power of Residence. (After the break- 
off of diplomatic relations between the United States and Cuba in 1961, Switzer- 
land acted as the Protecting Power for the United States in Cuba and Czechoslov- 
akia acted as the Protecting Power for Cuba in the United States.) 

255 



256 

the sixteenth century. 3 Curiously, in those early days protection of 
nonnationals came about not as a result of agreements reached with 
the Power of Residence by the Power of Origin, but as a result of 
agreements reached with the Power of Residence by the prospective 
Protecting Power itself — the latter having probably been primarily 
concerned with the resulting increase in its own prestige and influ- 
ence in the territory in which it was acting and in the home territo- 
ries of the protected persons. At that period the Protecting Power 
was, and in the three succeeding centuries it remained, completely 
a creature of custom and usage, with no conventional basis, definition, 
or functions. As a result, the extent of the activity of Protecting 
Powers varied in different countries and even, with respect to differ- 
ent Protecting Powers, within the same country. The passage of time 
resulted in the passing of the initiative for the designation of a Pro- 
tecting Power in a particular case from the Protecting Power to the 
Power of Origin, where it more properly belonged. It also resulted 
in the concept of the Protecting Power as an international institution 
becoming more and more firmly entrenched in customary international 
law and practice. In its present form, however, the Protecting Power 
dates back only one century — and its codified form is of even more 
recent vintage. 

Most writers attribute the modern genesis of the Protecting Power 
to developments which occurred during the Franco-Prussian War 
(1870-71). In that conflict, probably for the first time, all of the 
belligerents were represented by Protecting Powers in the territory 
of the enemy. Great Britain was charged with the protection of the 
French in Germany; and the United States, Russia, and Switzerland 
acted as Protecting Powers in France for the various German States. 4 
It may be said that the expansion of the functions of the Protecting 
Power during this conflict was, in large measure, due to two practices 
which originated during its course: that of expelling enemy consuls; 
and that of imposing stringent restrictions on enemy aliens. 5 Un- 



3 Isolated instances of this practice had occurred earlier. Thus, for example, we 
find that in the thirteenth century the Venetian Resident in Constantinople was 
charged with the protection of Armenians and Jews. The appearance of the Pro- 
tecting Power has been attributed to a combination of three older institutions of 
international law: extraterritoriality; the employment of foreigners as diplomatic 
and consular agents; and the use of personal good offices. Franklin, Protection 
7-29. It is doubtful that the concept of the Protecting Power as it first appeared 
in the Turkish Capitulations had any more direct progenitor. 

4 Franklin, Protection 29 & 39. Eroglu, La representation 10-12. Detailed infor- 
mation concerning the designation of Protecting Powers in most of the conflicts 
mentioned herein may be found in this excellent study, at 10-29. (Concerning the 
older institution of the "Prisoner-of-War Agent," see Article III of the Cartel for 
the Exchange of Prisoners of War between Great Britain and the United States 
(1813) and Basdevant, Deux conventions 5—6.) 

5 Franklin, Protection 29. 



257 

questionably, each of these practices could and did contribute to the 
need for the enlargement of the functions of the Protecting Power. 

The precedents established during the Franco-Prussian War were 
adhered to in most subsequent international armed conflicts, many 
of which had, however, their own peculiar aspects. Thus, in the Sino- 
Japanese War (1894-95) each side requested the United States to act 
as its Protecting Power, and so we find the same State acting as the 
Protecting Power for each belligerent within the territory of the 
other. 6 Similarly, Germany acted as the Protecting Power for both 
belligerents in the Italo-Turkish War (1911-12) and in the Sino- 
Soviet War (1929). Going to the other extreme, in the Greco-Turkish 
War (1897), Germany acted as the Protecting Power for Turkey in 
Greece, while three other nations — England, France, and Russia — 
acted jointly for Greece in Turkey; in the Spanish- American War 
(1898), England acted as the Protecting Power for the United States, 
while France and Austria-Hungary acted jointly for Spain [it was 
during this conflict that, for the first time recorded, a belligerent, (the 
United States) specifically requested neutral inspection of installa- 
tions within which prisoners of war were being held 7 ] ; and during 
the Balkan Wars (1912-13) France and Russia acted jointly as the 
Protecting Power for Montenegro. This practice of using more than 
one neutral State as a Protecting Power has since almost disappeared, 
although at one time during World War II Spain was acting as the 
Protecting Power for Japan in the continental United States, while 
Sweden acted for her in Hawaii, and Switzerland in American 
Samoa. 8 

The Boer War (1899-1902) may, perhaps, be considered to have 
been (at least to some extent) an exception to what was fast becom- 
ing a firmly established institution of international law. Early in that 
conflict the British requested the United States to represent their in- 
terests with the Boers. Apparently the consent of the Boers was not 
sought and they not only failed to designate a Protecting Power of 
their own, but, for all practical purposes, at first refused to recognize 
the right of the United States consular representatives to act on be- 
half of the British. Subsequently, the Boers did agree to permit the 
United States consuls in their territory to perform certain specific 
and limited functions with respect to British prisoners of war, upon 
the understanding that United States consuls in Great Britain would, 
and would be permitted to, perform similar functions with respect 



6 For the very interesting instructions issued by the United States to its Consul 
in Peking, see [1894]1 For. Rel. U.S. 106-08 (1895). 

7 Flory, Prisoners of War 107-08. 

8 Franklin, Protection 164. 



258 

to Boer prisoners of war held there. 9 Thus, to a limited degree, the 
institution of the Protecting Power was recognized even in that con- 
flict. 

The Russo-Japanese War (1904-05) found the Protecting Powers 
once again exercising the full powers which it had become customary 
to assign them. Perhaps as a result of the favorable experiences of 
the Sino-Japanese War, immediately upon the outbreak of hostilities 
Japan requested the United States to act on its behalf in Russia ; while 
France was designated by Russia as its Protecting Power in Japan 
and Korea. And once again, but to an even greater extent than during 
the Spanish-American War, we find the representatives of the Protect- 
ing Powers concerning themselves with the welfare of prisoners of 
war. 10 

Thus it can readily be seen that when World War I burst upon 
Europe, the designation of Protecting Powers by belligerents was a 
firmly established international custom, although the Protecting Pow- 
er as an institution had yet to be the subject of international legis- 
lation. 11 During the course of that conflict, four definite items of prog- 
ress occurred : first, public opinion in the belligerent nations achieved 
an ability to understand how a friendly neutral could represent, at 
times vigorously, an enemy belligerent and its nationals ; 12 second, the 
use of the Protecting Power as a means of safeguarding the welfare 
of prisoners of war, although at first somewhat restricted, was later 
greatly extended and received rather general acceptance; 13 third, the 



9 Ibid., 68-70. 

10 Eroglu, La representation 23-25; Franklin, Protection 78-19. The latter states 
that on one occasion when an American Vice Consul was inspecting a prisoner-of- 
war camp he was permitted to sample the meal which was then being given to 
Japanese prisoners of war. In view of all these precedents, it is particularly diffi- 
cult to comprehend why the 1899 and 1907 Hague Conferences, both of which were 
sponsored by the Tsar of Russia, while codifying many customary rules concerning 
the treatment of prisoners of war, continued the silence of previous international 
conventions with respect to the institution of the Protecting Power. 

11 Franklin, Protection 94-95. For the instructions issued by United States Sec- 
retary of State Bryan in August 1914, see 9 A.J.I.L Supp. 118 (1915) ; [1914] 
For. Rel. U.S. Supp 740-41 (1928). 

12 See Siordet, Scrutiny 7. World War I saw more men taken prisoner of war 
than in any previous conflict; and it likewise saw them held in captivity for longer 
periods of time. Both of these factors had the effect of focusing attention on pris- 
oners of war. It was undoubtedly this situation which led to the more general 
acceptance of the idea of a wider use of Protecting Powers in the interests of 
prisoners of war. Pictet, Commentary 93-94. 

13 Strangely, Germany, which had frequently acted as a Protecting Power, and 
the United States, which had not only frequently acted as a Protecting Power, but 
was probably the protagonist of the extension of the functions of the Protecting 
Power with respect to prisoners of war prior to its own entry into World War I. 
were the two most important belligerents to resist the activities of Protecting 
Powers. At the beginning of that War, Germany instituted rigid restrictions on 



259 

practice was adopted that when a neutral which had been acting as 
a Protecting Power itself became embroiled in the conflict, a successor 
Protecting Power would be designated to fill the vacuum; 14 and, fi- 
nally, the Protecting Power received legal recognition as an interna- 
tional institution in a number of bilateral and multilateral agreements 
entered into by various of the belligerents during the course of the 
hostilities in which, to a surprising extent, its functions were spelled 
out with some degree of definiteness. 15 

The precedents established during World War I were destined to 
bear fruit. 16 A draft prisoner-of-war convention prepared in 1921 by 
the ICRC, while contemplating the use of Protecting Powers for cer- 
tain limited purposes, would have assigned to the ICRC the respon- 
sibility for establishing mobile commissions composed of neutrals 
charged with assuring that the belligerents were complying with the 
convention. This proposal was probably due to two factors : first, the 
failure of the States which had acted as Protecting Powers during 
World War I adequately to report their activities; and, second, the 
belief that the duties involved in the effective protection of the rights 
of prisoners of war exceeded the capacity of the diplomatic personnel 
of the Protecting Powers. 17 However, when the Diplomatic Confer- 
ence convened in Geneva in 1929 and drafted the convention which 
subsequently received the ratifications of the vast majority of States, 
the ICRC proposal was not adopted; instead, the basic principle of 
the Protecting Power received general acceptance, the former Pro- 
tecting Powers taking the position that all that was needed to assure 
their activities was that their role "should be distinctly set out, and 
their task clearly defined." 18 The 1929 Prisoner-of-War Convention 



visits by neutrals to its prisoner-of-war camps. By 1916 these restrictions had, 
due largely to the efforts of the United States, for the most part disappeared. Yet 
when the United States became a belligerent in 1917, the United States Secretary 
of War took the position that Germany had no right to designate the Swiss to in- 
spect American prisoner-of-war camps unless under treaty law. Flory, Prisoners 
of War 108-09. His position was apparently overruled by President Wilson and 
the Swiss were permitted to make such inspections. 

14 Eroglu, La representation 27-28. 

15 All of the bilateral and multilateral agreements cited in note 1-39 supra had 
references to the Protecting Power. The 1918 Agreement between the United 
States and Germany cited therein referred to the Protecting Power in no less than 
25 separate articles. 

16 Franklin, Protection 99-100, states, or perhaps somewhat overstates, that a 
plan for the operations of the Protecting Power proposed by the still-neutral 
United States in 1915, and accepted by the British and German Governments with 
broadening modifications, "gained world-wide recognition and paved the way which 
led to the prisoner of war convention signed ... at Geneva on July 27, 1929." 

17 Rpsmussen, Code des prisonniers de guerre 56. 

1S Siordet, Scrutiny 12. Twenty years and one World W:ir later, we again find 
them urging that the Protecting Power be given the benefit of "well-defined and 
precise provisions." 2B Final Record 19. 



260 

thus became the first international agreement negotiated in time of 
peace to give official recognition to the institution of the Protecting 
Power. 19 However, it did not create a new international concept. It 
did not make the use of the Protecting Power by belligerents obliga- 
tory. It did not affect the relationships which had previously existed 
between the Power of Origin, the Protecting Power, and the Detain- 
ing Power. It did give the relationship a formal and agreed status 
which it had not previously had. 20 It may well be considered that the 
provisions of the 1929 Convention relating to Protecting Powers con- 
stituted the most important advance contained in that Convention over 
the provisions relating to prisoners of war contained in the 1907 
Hague Regulations. The lessons learned during World War I had not 
been forgotten. 

The advent of World War II provided, all too soon, an opportunity 
for the implementation and testing of this novel international legis- 
lation. Most of the belligerents were represented by Protecting Powers 
and, in general, these found the provisions of the 1929 Convention 
relating to their activities extremely helpful, even if not as all-inclu- 
sive as they might have preferred. True, the designation and func- 
tioning of Protecting Powers on behalf of prisoners of war had 
previously become an almost universally accepted custom of the 
international law of war. But it is necessary to bear in mind that, 
despite this, in the Soviet Union and in Japan, neither of which 
nations was a party to the 1929 Convention, there was either complete 
or substantial failure in the functioning of the Protecting Powers. 21 



19 Seitz, La Suisse 34. 

20 Franklin, Protection 115; Janner, Puissance protectrice 49. 

21 The Soviet Union took the position that as it was a Party to the Fourth Hague 
Convention of 1907, the Regulations annexed to which, it asserted, covered "all the 
main questions of the regime of captivity" (but not the question of the Protecting 
Power, see note 10 supra), there was no need for it to consider an Italian proposal 
to apply reciprocally the provisions of the 1929 Convention (1 ICRC Report 412). 
While Japan stated its intention to "apply this Convention mutatis mutandis, to 
all prisoners of war" (ibid., 443), the Protecting Powers were never permitted to 
function in Japan in a manner even remotely resembling their manner of function- 
ing in the territories and, particularly, the occupied territories of most of the 
other belligerents. I.M.T.F.E. 1127-36; Franklin, Protection 129-34. As a result 
of the foregoing, and of the disappearance of many Powers of Origin during the 
course of the hostilities, the ICRC has estimated that during World War II ap- 
proximately 70 percent of all prisoners of war were deprived of the services of a 
Protecting Power. 2B Final Record 21; de La Pradelle, NouveUcs conventions 226. 
Thus, Germany denied the status of States to Poland, Yugoslavia, France, and 
Belgium (after the 1940 armistice agreements), Free France and Italy (after 
Mussolini's overthrow in 1943). and refused to permit the intervention of Protect- 
ing Powers on behalf of their captured personnel. Pictet, Recueil 87-88. After 
World War II ended, the Swiss made a detailed report of their manifold activities 
as a Protecting Power. Seitz, La Suisse 34. 



261 

In general, the fact that such a large number of countries were 
parties to the World War II hostilities had two distinct but related 
results. In the first place, not only did the absence of strong neutrals 
present a problem in the selection of Protecting Powers, but it also 
meant that there was no large neutral world public opinion to be 
affected by violations of the Convention; and, in the second place, 
because of the small number of neutrals available to act as Protecting 
Powers, it frequently occurred that the same neutral was designated 
to act as the Protecting Power for two opposing belligerents. 

Once again wartime lessons were not forgotten and, just four years 
later, the 1949 Prisoner-of-War Convention was signed in which, as 
we shall see, the functions of the Protecting Power are identified and 
defined with far greater particularity than had been the case in the 
1929 Convention. 22 Unfortunately, in not one of the numerous in- 
stances of international armed conflicts which have occurred since 1949 
has the institution of the Protecting Power been utilized. 23 

From the foregoing brief historical survey, it is apparent that prior 
to 1870 only the precursors of the modern Protecting Power existed, 
and not the latter itself; that during the period from 1870 to 1914 
the concept of the use of the Protecting Power began to take form, 
particularly with respect to the problem of the prisoner of war ; and 
that, during the period subsequent to 1914, the form has become 
definite, the institution of the Protecting Power having become the 
subject of numerous bilateral and multilateral international agree- 
ments, culminating in the 1949 Convention to which most of the na- 
tions of the world are parties. 24 It now becomes appropriate to an- 



22 References to the Protecting Power are contained in 36 of its 132 substantive 
articles, as well as in two of its Annexes. 

23 U.N., Human Rights, A/7720, sec. 213. But see Pictet, Humanitarian Law 66 
and note 29 infra. In Korea and in Vietnam the ICRC performed the humanitarian 
functions of the Protecting Power on one side (in South Korea and in South Viet- 
nam) but was not allowed to do so on the other. In the Indo-Pakistani Wars (1965 
and 1971), the Middle East Wars (1967 and 1973), and the Honduran-Salvador 
Conflict (1969), the ICRC performed these functions on both sides. (In the India- 
Portugal War (1961) a Protecting Power already existed because of a prior break 
in diplomatic relations.) 

24 See Appendix B. The use of the institution of the Protecting Power has since 
been resorted to in Article 21 of the 1954 Hague Convention for the Protection of 
Cultural Property in the Event of Armed Conflict, where it is adopted as a means 
of overseeing the protection of inanimate objects — which is, actually, merely a 
variation of the protection furnished historically by a Protecting Power, a very 
large part of its energy having once been directed toward the protection of the 
embassy buildings and diplomatic archives of the Protected Power. See also, 
Articles 45 and 46 of the 1961 Vienna Convention on Diplomatic Relations. 



262 

alyze the form and the character which the Protecting Power received 
during this evolutionary process. 25 

2. The Modern Concept of the Protecting Power 

a. DESIGNATION 

Article 86 of the 1929 Convention was, to say the least, somewhat 
vaguely worded: 

The High Contracting Parties recognize that the regular appli- 
cation of the present Convention will find a guaranty in the 
possibility of collaboration of the protecting Powers charged 
with safeguarding the interests of belligerents. . . . (Emphasis 
added.) 
There is nothing mandatory here. There is no requirement here that 
a Protecting Power actually be designated or that, if designated, it 
be permitted to function as such by the Detaining Power. The com- 
parable provision of the 1949 Convention reads quite differently. 
Article 8(1) of the latter Convention reads: 

The present Convention shall be applied with the cooperation 
and under the scrutiny of the Protecting Powers whose duty 
it is to safeguard the interests of the Parties to the conflict. . . . 
(Emphasis added.) 26 
It would appear that it was intended that the designation of Pro- 
tecting Powers become at least a moral obligation of the belligerents ; 
and that, once designated, a Protecting Power has a duty not only to 
the Power of Origin 27 but also to the other parties to the conflict, 



25 As was aptly stated by one author: "What happened was that an existing 
usage was taken, and transformed into a regulation. It was the organ which 
created the function. " Siordet, Scrutiny 3. 

26 This provision has been termed "the keystone" of the 1949 Convention. Ying- 
ling & Ginnane 397. In the British Manual para. 276, the Protecting Power is 
termed 'the principal organ, apart from the Contracting Parties themselves, for 
ensuring the observance of the execution of the Convention." It is therefore indeed 
distressing to find that while Soviet International Law states (at 421) that "citi- 
zens of a belligerent who remain on enemy territory are under the protection of 
some neutral country," nowhere in the comparatively detailed discussion of the 
1949 Prisoner-of-War Convention (at 431-34) is there even any passing reference 
to such a right of protection for prisoners of war or to the provisions of the Con- 
vention relating to Protecting Powers. 

27 It must be borne in mind that a Protecting Power is not a general agent of 
the Power of Origin. One author has defined the overall relationship between these 
two Powers as follows: "The protecting Power does not act in its own name but 
rather as a kind of caretaker or interrne diary. Nevertheless, it acts independently 
in so far as the State whose interest it protects cannot demand, but only request, 
it to perform certain services, and the protecting Power itself decides the way in 
which it discharges its mission. Nor may a belligerent give instructions to those 
organs of the protecting Power which carry out this mission. Instead, requests to 
the protecting Power have to be made through diplomatic channels. The protecting 



263 

to perform the functions which have been assigned to it by the Con- 
vention. 28 But if it was the intention of the 1949 Diplomatic Confer- 
ence to make the designation of Protecting Powers mandatory in 
international armed conflicts, the Convention has been totally unsuc- 
cessful in accomplishing that purpose; for, as has been mentioned, 
there has not been a single Protecting Power designated pursuant 
to Article 8 since the Convention was drafted and entered into effect 
— and there has certainly been no lack of international armed con- 
flict during that period. The importance of this failure cannot be over- 
estimated. 29 

The ICRC has identified three major reasons why the institution 
of the Protecting Power has not been utilized in the international 
armed conflicts which have taken place since the Convention became 
effective : 

(1) The designation of a Protecting Power might be inter- 
preted as the recognition of the enemy belligerent; 

(2) Despite the armed conflict, diplomatic relations were not 
broken off by the belligerents; 

(3) The existence of a general reluctance, because of the pro- 
visions of Article 2(4) of the Charter of the United Nations, to 
admit the existence of and participation in international armed 
conflict. 30 

It is possible to draft provisions which would effectively eliminate 
the first two bases for failing to. designate a Protecting Power. It 
would be exceedingly difficult, if not impossible, to draft a provision 
which would eliminate the third reason. 



Power may refuse to act when compliance with a request would be contrary to its 
own interests or infringe the lawful right of the enemy State." Castren 92. See 
also, Franklin, Protection 114. 

28 Siordet has stated that the designation of a Protecting Power is no longer 
optional but is now "almost obligatory"; that it is now put in the "imperative 
form"; and that in performing its mission the Protecting Power is no longer the 
special representative of one of the parties, but is "the representative of all the 
Contracting Parties to the Convention." Siordet, Scrutiny 36. See also, 1971 GE 
Documentation, II, at 11-12. 

29 In Pictet, Humanitarian Law 66, the statement is made that Protecting 
Powers have been designated in three instances since World War II: Suez (1956) ; 
Goa (1961) ; and Bangladesh (1971). Forsythe, Who Guards the Guardians 46-47 
accepts that statement in its entirety. However, it is subject to major qualifica- 
tions; in fact, it is arguable that none of these three instances can really be said 
to constitute the designation of a Protecting Power pursuant to Article 8 of the 
1949 Convention. 

One of the leading military-academic scholars in this field has said : "To talk of 
the regular application of international humanitarian law without the effective 
functioning of some Protecting Power system ... is idle chatter." Draper, Imple- 
mentation 47. Elsewhere the same author has said that "the Geneva Conventions 
of 1949 are virtually inoperative without the active role and participation of the 
Protecting Power system." Ibid., 46. 

30 1971 GE Documentation, II, at 16-17. For a lengthier list of reasons, see Abi- 



264 

The future is far from bright with respect to the overall solution 
of this problem, and this has received wide recognition. Area special- 
ists are able to find little or no evidence that any Communist country 
— given the "spy-phobia" complexes with which all are afflicted — 
will ever allow a Protecting Power to function in its territory, 31 no 
matter how the provisions of the Convention relating to the designa- 
tion of Protecting Powers are strengthened and clearly made man- 
datory. Some time ago the United Nations General Assembly, after 
shying away from the subject for many years, officially recognized 
the prior lack of, and the future need for, recourse to the institution 
of the Protecting Power. 32 Innumerable private international organi- 
zations have sought a solution to the problem. 33 At the very initia- 
tion of its proposal to review the need for the reaffirmation and 
development of international humanitarian law applicable in armed 
conflicts, the ICRC emphasized the problem in this area, 34 and the 
Conference of Government Experts convened by the ICRC in 1971 
discussed the subject at great length. 35 The ICRC attempted to draft 
a provision which would not only make the designation of a Protecting 
Power practically mandatory, but would also eliminate several of the 
reasons, enumerated above, for the past failures to designate Pro- 
tecting Powers. 36 The 1972 Conference of Government Experts once 
again discussed the matter at length, 37 this time in the context of the 
ICRC proposal and of the many substitute and amendatory proposals 



Saab, Le renforcement du systeme du droit humanitaire, XII / 2 Revue de droit 
penal militaire et de droit de la guerre 227-28. 

31 Miller, The Law of War 224, 241-42, & 254. These conclusions are undoubtedly 
based at least in part on the actions of the Soviet Union during World War II ; the 
events in Korea (1950-53) ; the Sino-Indian War (1962) ; and Vietnam (c. 1965- 
73). Nevertheless, in commenting on the proposals contained in U.N., Human 
Rights, A/8052, Ch. XI, concerning the possibility of new machinery to replace 
the Protecting Power, the Soviet Union said that "it must be stated that existing 
institutions should be used to supervise the application of humanitarian rules in 
armed conflict." U.N., Human Rights, A/8313, at 68. The cynic might interpret 
this to mean that the Soviet Union prefers a moribund, inoperative Protecting 
Power rather than a new, vital, mandatory institution, created for the purpose of 
ensuring that belligerents will apply, and will comply with, the provisions of the 
Convention. 

32 G.A. Res. 2852, 20 December 1971, Respect for human rights in armed con- 
flicts, 26 GAOR, Supp. 29, at 90, U.N. Doc. A/8429 (1972). See also U.N., Human 
Rights, A/ '7720, § 213. 

33 See 1971 GE Documentation, II, at 22. See also 1972 I.L.A. Rep. 305, 308; 
U.N., Human Rights, A/8370, § 165. 

34 1969 Reaffirmation 87-91 ; 1971 GE Documentation, II, at 10-34. 
M 1971 GE Report, paras. 532-51. 

3« 1972 Basic Texts 6; 1972 Commentary 14-19. 
3 " 1972 GE Report, I, at paras. 4.56-4.58, & 5.24. 



265 

that had been submitted by the experts of the various nations. 38 Out 
of this discussion emerged a new proposal that was submitted to the 
Diplomatic Conference. 39 

Article 5 of the 1973 Draft Additional Protocol relating to inter- 
national armed conflicts contained six paragraphs, the first five of 
which are relevant to the problem under discussion. Paragraph 1 
provided that from the outset of international armed conflict, as spe- 
cified in Article 2 of the 1949 Convention, each belligerent "shall 
without delay designate a Protecting Power . . . and . . . permit the 
activities of a Protecting Power designated by the adverse Party 
and accepted as such." Obviously, this was merely an iteration of a 
fundamental, customary rule of international law and no real solution 
to the problem. True, the belligerents were being told in grammatically 
authoritative language (shall) that they were to make use of and to 
permit the enemy to make use of the Protecting Power ; but once again 
there would be no automatic remedy for the situation created where 
a belligerent disregarded, or even affirmatively refused to comply 
with, the requirements of the paragraph. 40 

In paragraph 2 an attempt was made to solve the foregoing prob- 
lem. It provided that where there was "disagreement or unjustified 
delay" in the designation of Protecting Powers, the ICRC "shall offer 
its good offices" — not to perform the functions of the Protecting Pow- 
ers but merely to assist in their selection: it was therein authorized 
to ask each belligerent for "a list of at least five States which they 



38 Ibid., II, 97-104 passim. For a discussion of the proposal in this regard made 
by the U.S. experts, see Baxter, Perspective: the Evolving Law of Armed Con- 
flicts. 60 Mil. L. Rev. 99, 109-10 (1973). 

39 Article 5 of the 1973 Draft Additional Protocol; and 1973 Commentary 11-14. 
That Article was discussed, amended, and adopted by Committee I of the 1975 
Diplomatic Conference. 1975 Report of Committee I, at 10-17; The Committee's 
proposal was adopted in toto by the Diplomatic Conference with only minor edit-' 
orial changes. 

40 The 1973 Conference of Government Experts had discussed the possibility of 
a procedure for the automatic designation of Protecting Powers but had decided 
against it. 1973 Commentary 12. The provisions actually adopted by the Diplomatic 
Conference as Article 5(1) and (2) of the 1977 Protocol I read: 

Article 5 — Appointment of Protecting Powers and of their substitute 

1. It is the duty of the Parties to a conflict from the beginning of that con- 
flict to secure the supervision and implementation of the Conventions and of 
this Protocol by the application of the system of Protecting Powers, including 
inter alia the designation and acceptance of those Powers, in accordance with 
the following paragraphs. Protecting Powers shall have the duty of safe- 
guarding the interests of the Parties to the conflict. 

2. From the beginning of a situation referred to in Article 1, each Party to 
the conflict shall without delay designate a Protecting Power for the purpose 
of applying the Conventions and this Protocol and shall, likewise without 
delay and for the same purpose, permit the activities of a Protecting Power 
which has been accepted by it as such after designation by the adverse Party. 



266 

consider acceptable"; 41 the lists "shall be communicated" within 10 
days ; and if any State is on both lists, the ICRC is to seek its agree- 
ment. 42 And paragraph 3 included alternative proposals for the con- 
sideration of the Diplomatic Conference as to the procedure to be 
followed if, despite the provisions of paragraph 2, no Protecting 
Powers were designated: (1) the ICRC could offer to assume the 
functions of a substitute for the Protecting Powers if the adverse 
belligerents agreed "and insofar as those functions are compatible 
with its own activities"; or (2) the belligerents "shall accept" the 
offer of the ICRC to act as a substitute for the Protecting Powers. 43 
The first alternative still made it possible for a belligerent to prevent 
the ultimate designation of a Protecting Power or a substitute for a 
Protecting Power ; the second alternative made it mandatory that the 
offer of the ICRC be accepted by the belligerents. 



41 It was not clear whether a belligerent would be suggesting States which it 
desired to have act as a Protecting Power on its behalf, or which it would be will- 
ing to accept on its territory as a Protecting Power for the adverse Party, or both. 
However, this has been clarified in Article 5(3) of the 1977 Protocol I. See note 42 
infra. 

42 Presumably, the inclusion of the name of a State on the two lists would mean 
that it was acceptable to both belligerents and only its consent would then be 
needed for the trilateral agreement that is required. See note 2 supra, and note 50 
infra. The provision actually adopted by the Diplomatic Conference as Article 5(3) 
reads : 

3. If a Protecting Power has not been designated or accepted from the be- 
ginning of a situation referred to in Article 1, the International Committee of 
the Red Cross, without prejudice to the right of any other impartial humani- 
tarian organization to do likewise, shall offer its good offices to the Parties to 
the conflict with a view to the designation without delay of a Protecting Power 
to which the Parties to the conflict consent. For that purpose it may, inter alia, 
ask each Party to provide it with a list of at least five States which that Party 
considers acceptable to act as Protecting Power on its behalf in relation to an 
adverse Party, and ask each adverse Party to provide a list of at least five 
States which it would accept as the Protecting Power of the first Party; these 
lists shall be communicated to the Committee within two weeks after the re- 
ceipt of the request; it shall compare them and seek the agreement of any 
proposed State named on both lists. 

(The ICRC is not instructed as to what action it is to take if, by chance, more 
than one State is named on both lists ! ) 

43 The ICRC had previously announced that it had decided that all of the func- 
tions of the Protecting Power were humanitarian in nature and that they could, 
therefore, be performed by that organization. 1972 GE Report, I, para. 4.71 (at 
180). See also, ibid., 208; and 1971 GE Report, paras. 553-54. The major contro- 
versy in Committee I revolved around the choice between the two alternatives pro- 
posed, as well as many suggested variations thereof. Article 5(4) of the 1977 
Protocol I, as approved by the Diplomatic Conference, reads: 

4. If, despite the foregoing, there is no Protecting Power, the Parties to the 
conflict shall accept without delay an offer which may be made by the Inter- 
national Committee of the Red Cross or by any other organization which offers 
all guarantees of impartiality and efficacy, after due consultations with the 



267 

Paragraph 4 was an attempt to eliminate one of the reasons some- 
times advanced by belligerents as justification for their failure to 
utilize the institution of the Protecting Power in international armed 
conflict — the fear that this action would be interpreted as a recog- 
nition of the enemy belligerent. 44 It very specifically stated that the 
designation and acceptance of Protecting Powers "shall not affect the 
legal status of the Parties to the conflict or that of the territories 
over which they exercise authority." 45 And paragraph 5 was an at- 
tempt to eliminate another of the reasons that had previously been 
advanced by belligerents as justification for their failure to utilize 
the institution of the Protecting Power in international armed con- 
flict — that diplomatic relations had not been broken off by the bellig- 
erents. 46 It provided in relevant part that "[t]he maintenance of dip- 
lomatic relations . . . does not constitute an obstacle to the appoint- 
ment of Protecting Powers . . . ." 47 Experience has demonstrated 
that even though diplomatic relations have not broken off, an enemy 



said Parties and taking into account the result of these consultations, to act 
as a substitute. The functioning of such a substitute is subject to the consent 
of the Parties to the conflict; every effort shall be made by the Parties to the 
conflict to facilitate the operation of the substitute in the performance of its 
tasks under the Conventions and this Protocol . 
Concerning the "any other organizations" referred to above, see pp. 312-314 infra. 

44 The several Middle East conflicts (1956, 1967, 1973) presented this problem. 
Pilloud, Reservations 8. 

45 See also Article 4 of the 1977 Protocol I. A provision to the same general 
effect may be found in Article 3(4) of the 1949 Convention, dealing with noninter- 
national armed conflicts, and for the same reason. Article 5(5) of the 1977 Pro- 
tocol I as approved by the 1975 Diplomatic Conference reads: 

5. In accordance with article 4, the designation and acceptance of Protect- 
ing Powers for the purpose of applying the Conventions and the Protocol shall 
not affect the legal status of the Parties to the conflict or of any territory, in- 
cluding occupied territory. 

46 The major international armed conflict in which diplomatic relations were 
not broken off and in which this problem arose was the Sino-Indian War (1962). 
See Cohen & Chiu, People's China 1570-71; Cohen & Leng, The Sino-Indian Dis- 
pute 298-300; Draper, Implementation 46. 

47 Article 5(6) as adopted by the Committee I of the 1975 Diplomatic Confer- 
ence was the proposed Article 5(5) of the 1973 Draft Additional Protocol with an 
addition which should make it even more difficult for a belligerent to use the exist- 
ence of diplomatic relations as an excuse for failing to cooperate in the designation 
of Protecting Powers. Article 5(6) of the 1977 Protocol I, as approved by the Dip- 
lomatic Conference reads: 

6. The maintenance of diplomatic relations between Parties to the conflict 
or the entrusting of the protection of a Party's interests and those of its na- 
tionals to a third State in accordance with the rules of international law relat- 
ing to diplomatic relations is no obstacle to the designation of Protecting 
Powers for the purpose of applying the Conventions and this Protocol. 

(For a discussion in depth of the activities of the 1975 session of the Diplomatic 
Conference with respect to Article 5 of what became the 1977 Protocol I, see For- 
sythe, Who Guards the Guardians.) 



268 

Embassy cannot function for the protection of its nationals, particu- 
larly prisoners of war, to an extent even remotely equivalent to a 
neutral State acting as a Protecting Power. 48 

What are the qualifications required for designation as a Protecting 
Power? It must, first of all, be a State within the meaning of that 
term in international law. It must also, of course, be a neutral State 
— and it is advisable that it be one which can reasonably be expected 
to remain neutral, although this latter qualification has become more 
and more difficult to assure. And, finally, it must be a State which 
maintains diplomatic relations with both the requesting State (the 
Power of Origin) and the State in the territory of which it is being 
requested to operate (the Detaining Power). 

How does a State actually become a Protecting Power? The bellig- 
erent State desiring the services of a Protecting Power (the Power 
of Origin) requests a neutral State which has the qualifications listed 
above to act on its behalf vis-a-vis a specific enemy belligerent. If the 
neutral State is willing to assume the functions of a Protecting Pow- 
er, it so notifies the requesting State. It must then obtain the concur- 
rence of the enemy belligerent in whose territory it has been requested 
to function (the Detaining Power). 49 In other words, the actual des- 
ignation of the Protecting Power is based upon the request of the 
Power of Origin and the consent of both the proposed Protecting 
Power and the Detaining Power. 50 



48 Cohen & Leng, The Sino-Indian Dispute 278 & 320; Draper, People's Republic 
367; 1971 GE Report, para. 538. This does not apply to neutrals or cobelligerents 
and Article 4(2) of the Fourth Convention provides that nationals of such Powers 
are not protected persons while diplomatic relations are maintained. There is no 
such provision with respect to nationals of enemy Powers. In the Third Convention 
the sole reference to the effect of the continuance of diplomatic relations is in that 
portion of Article 4B(2) which is concerned with members of the armed forces of 
belligerents in the territory of neutral or "non-belligerent" Powers. This is indica- 
tive of the fact that the 1949 Diplomatic Conference did not intend that the con- 
tinuing presence of enemy diplomatic personnel in the territory of a belligerent 
should nullify the provisions of the Convention concerning Protecting Powers. The 

1972 Conference of Government Experts apparently felt quite strongly about this. 

1973 Commentary 164; 1972 GE Report, I, paras. 4.56-4.79. 

49 Heckenroth, Puissances protectrices 74. This is the step that the United States 
apparently failed to take when it was requested to perform the functions of the 
Protecting Power by Great Britain during the Boer War (1899-1902), See p. 257 
supra. 

50 The 1949 Convention contains no provisions with respect to the method of des- 
ignating a Protecting Power, the required qualifications for a Protecting Power, 
etc., leaving these problems to be governed by the relevant rules of customary in- 
ternational law. Heckenroth, Puissances protectrices 62 & 224. The 1973 Draft 
Additional Protocol proposed, in Article 2(d), to define the term "Protecting 
Power" as meaning "a State not engaged in the conflict, which, designated by a 
Party to the conflict and accepted by the adverse Party, is prepared to carry out 
the functions assigned to a Protecting Power under the Conventions and the pres- 



269 

As we have seen, it has frequently occurred in the past that more 
than one State has been designated as the Protecting Power for a 
belligerent. 51 There is nothing in the 1949 Convention, nor in general 
international law, to preclude this practice. However, the advantages 
of the other extreme — one and the same Protecting Power for oppos- 
ing belligerents — are many. Even a small nation, when acting as the 
Protecting Power for both sides, is in a unique position to obtain a 
general observance of the law of war by each belligerent on the basis 
of reciprocity. This was made quite apparent during World War II, 
when Switzerland acted as the Protecting Power for many of the 
belligerents on both sides of that conflict. 52 The limited number of 
States that would be available and competent to act as Protecting 
Powers in any future major international armed conflict might once 
again bring about this result. 53 

b. SUBSTITUTES FOR PROTECTING POWERS 

In the light of events of World War II, the delegates at the 1949 
Diplomatic Conference could not but foresee the possibility of situa- 
tions in which there would be no Protecting Power to stand between 
the Detaining Power and the prisoner of war. 54 They attempted to 



ent Protocol." This provision, with some useful editing, was eventually approved 
by the Diplomatic Conference as Article 2(c) of the 1977 Protocol I. It reads: 
(c) ''Protecting Power" means a neutral or other State not a Party to the 
conflict which has been designated by a Party to the conflict and accepted by 
the adverse Party and has agreed to carry out the functions assigned to a 
Protecting Power under the Conventions and this Protocol. 

51 See pp. 256-257 supra. 

52 Pictet, Commentary 95-96. The same conclusion was reached in Franklin, 
Protection 164-65, where this statement appears: "For uniformity and simplicity 
of administration it is obviously desirable for the protected power [Power of 
Origin] to entrust its interests in another country to only one protecting power, 
and in instances involving the protection of belligerent interests there are advan- 
tages to all concerned if both belligerents entrust their interests in the other's 
territory to the same protecting power. . . . The experience of World War II indi- 
cates that a more uniform administration and a higher standard of treatment of 
enemy interests by both belligerents result from a reciprocal protection of the in- 
terests of those belligerents by the same protecting power throughout the territor- 
ies under the control of each belligerent." In 1945 Switzerland alone represented 35 
belligerents, and in many cases it represented both of opposing belligerents in the 
territory of the other. Janner, Puissance protectrice 24 and Annexe I, at 68-70. 
(Eroglu, La representation, Annexe III, at 144-48, lists only 34, but he omits 
Yugoslavia.) 

53 One author has suggested the possibility that in a future international armed 
conflict the demand for Protecting Powers may exceed the supply available. De La 
Pradelle, Nouvelles conventions 225. Of course, since that was written the number 
of States in the world community has more than doubled and many of these new 
sovereign entities would probably be available to act, and would be fully capable of 
acting, as Protecting Powers. 

54 For some of these possible situations see Siordet, Scrutiny 48-53 ; and Heck- 
enroth, Puissances protectrices 229-36. 



270 

solve this problem, in all its varied facets, by providing in Article 10 
of the Convention a number of methods for the designation of "sub- 
stitutes" for Protecting Powers. 55 It must, however, be emphasized 
that the provisions of this Article should not be considered as affect- 
ing the basic method of selecting either the original Protecting Power 
or successor Protecting Powers as long as the Power of Origin con- 
tinues to exist and to be able to function in its sovereign capacity. 
A successor Protecting Power, necessitated, perhaps, because the orig- 
inal Protecting Power has become a belligerent, is not a "substitute" 
for a Protecting Power within the meaning of Article 10, and its 
designation is governed by the same rules of customary international 
law as those which govern the designation of the original Protecting 
Power. 50 It must also be noted that a State or organization designated 
under the provisions of Article 10 is not a "Protecting Power" as that 
term is used generally in international law and as it is used else- 
where in the Convention, but is merely a State or organization per- 
forming some or all of the functions allocated to Protecting Powers 
by the various relevant provisions of the Convention. 57 



55 A substitute for the Protecting Power exercises all of the powers and per- 
forms all of the functions of a Protecting Power. See Article 10(6). Concerning 
the French proposal for an ongoing international organization to serve as the sub- 
stitute for the Protecting Power and the 1949 Diplomatic Conference's decision to 
refer it to the governments by resolution, see p. 18 supra. The Soviet Union 
opposed both the French proposal and the adoption of the resolution, stating as to 
the latter that it "sees no need to consider this question or to create such a body, 
since the problem of the Protecting Powers has been satisfactorily solved by the 
Conventions established at the present Conference." Declaration made by the Dele- 
gation of the Soviet Union at the time of the signing of the 1949 Geneva Conven- 
tions, 1 Final Record, 201. The validity of that statement is considerably reduced 
by the fact that both the French proposal and the resolution pertained to sub- 
stitutes for Protecting Powers under Article 10 — and the Soviet Union made a 
reservation to that Article. See text, pp. 273-274 infra. 

56 Pictet, Commentary 117-18. Thus, when Spain withdrew as the Protecting 
Power for Japan in the continental United States on 30 March 1945, the Japanese 
Government requested Switzerland to act in that capacity, Switzerland agreed to 
do so, the United States gave its concurrence and, effective 21 July 1945, Switzer- 
land assumed the functions of Protecting Power for Japan in the United States. 
Rich, Brief History 488. In this case Switzerland was a Protecting Power as suc- 
cessor to Spain; it was not a substitute for a Protecting Power. 

57 Article 2(e) of the 1973 Draft Additional Protocol defined a "substitute" as 
"an organization acting in place of a Protecting Power for the discharge of all or 
part of its functions." 1973 Draft Additional Protocol 3. As adopted by Committee 
I and as approved by the Diplomatic Conference as Article 2(d) of the 1977 Pro- 
tocol I, this provision now reads: 

(d) "substitute" means an organization acting in place of a Protecting 
Power in accordance with Article 5. 
Article 5(6) of the 1973 Draft Additional Protocol stated that whenever mention 
was made therein of a Protecting Power, this "also implies the substitute within 
the meaning of Article 2(e)." 1973 Draft Additional Protocol 4. (This latter pro- 



271 

The first paragraph of Article 10 authorizes the High Contracting 
Parties to agree "to entrust to an organization which offers all guar- 
antees of impartiality and efficacy the duties incumbent on the Pro- 
tecting Powers." It is on the basis of the foregoing that a legal 
foundation already exists for the various international organizations 
which have been proposed as substitutes for Protecting Powers; 58 
and it is here that the ICRC's recently expressed willingness to assume 
the functions of a substitute for a Protecting Power 59 would be im- 
plemented. Moreover, if this provision and the provisions of the second 
paragraph of Article 10, discussed immediately below, fail to produce 
a substitute for a Protecting Power, then under the third paragraph 
of Article 10 the Detaining Power "shall request or shall accept" the 
services of a humanitarian organization such as the ICRC to assume 
the humanitarian functions of the Protecting Power. 60 

The second paragraph of Article 10 contains the controversial pro- 
visions with respect to substitutes for Protecting Powers. It provides, 
in substance, that where, "no matter for what reason" (emphasis 
added), there is no Protecting Power (designated under Article 8) 



vision is substantially the same as Article 10, paragraph 6, of the 1949 Conven- 
tion). With some minor editing Article 5(6) of the 1973 Draft Additional Protocol 
was adopted by the Diplomatic Conference as Article 5(7) of the 1977 Protocol I. 

58 The French proposal, incorporated into Resolution 2 of the 1949 Diplomatic 
Conference, was an early example of such an organization. See note 55 supra. See 
also U.N., Human Rights, A/1120, §§ 224-25; ibid., A/8052, paras. 245-50; 1971 
GE Report, §§ 540-48; 1972 Commentary 25-26. One of the major functions of the 
new international entity proposed by the present author (see pp. 19-20 supra) 
would be as an automatic substitute for a Protecting Power. See Levie ,Working 
Paper 11-14. (The "International Fact-Finding Commission" created by Article 90 
of the 1977 Protocol I does not have this function.) At the 1949 Diplomatic Con- 
ference the ICRC representative indicated that the first paragraph of Article 10 
contemplated an agreement entered into in peacetime entrusting the functions of 
the Protecting Power to a named organization. 2B Final Record 61. While this is 
certainly a possibility, and is the basis for the proposals herein referred to, there 
is no reason why it could not also be implemented by the belligerents in wartime. 

59 See note 43 supra. This expressed willingness on the part of the ICRC to act 
as a substitute for a Protecting Power was a complete reversal of policy. At the 
1949 Diplomatic Conference the ICRC representative had stated that the ICRC 
"could on no account be taken into consideration" to act as the organization con- 
templated by the first paragraph of Article 10. 2B Final Record 61. 

60 It is here that the ICRC felt that it belonged when the statement quoted in 
note 59 supra was made. 2B Final Record 63; Pictet, Commentary 119. However, 
inasmuch as it has now determined (and properly so) that all of the functions 
of a Protecting Power are humanitarian in nature (see note 43 supra), the differ- 
ence between "the duties incumbent on the Protecting Powers," contained in the 
first paragraph of Article 10, and "the humanitarian functions performed by Pro- 
tecting Powers," contained in the third paragraph of Article 10, has, for all prac- 
tical purposes, disappeared. It must be borne in mind, however, that while the 
first paragraph of Article 10 requires the agreement of the Detaining Power and 
the Power of Origin, action under the third paragraph of Article 10 may be taken 
by the Detaining Power acting alone. Heckenroth, Puissance protectrices 263-65. 



272 

and no organization entrusted with the duties of the Protecting Power 
(pursuant to the first paragraph of Article 10), "the Detaining Power 
shall request a neutral State, or such an organization" to undertake 
to perform the functions assigned to the Protecting Powers by the 
Convention. On the surface this appears to be just one more effort 
to ensure the existence of a Protecting Power or of a substitute for a 
Protecting Power in the absence of an actual Protecting Power. The 
dispute which has arisen may be ascribed to the inclusion of the clause 
"no matter for what reason." This appears to give to the Detaining 
Power, acting alone, carte blanche to select a neutral State or an or- 
ganization "which offers all guarantees of impartiality and efficacy" to 
perform the duties of a Protecting Power whenever for the moment 
there is no Protecting Power in being. This clause, and the entire 
paragraph, has been interpreted by some commentators as being lim- 
ited in its application to instances in which the Power of Origin 
"intentionally abstains, or systematically refuses, to appoint a Pro- 
tecting Power, or again, if it disappears entirely." 61 However, it can 
be argued just as strongly, and possibly with more legal justification, 
that "no matter for what reason" means exactly what it says. The 
Soviet and other delegates at the 1949 Diplomatic Conference objected 
to the quoted clause in that they believed that the right of the Detain- 
ing Power to act unilaterally in the selection of a substitute for a 
Protecting Power for the Power of Origin should be limited to situa- 
tions in which the Power of Origin had ceased to exist. 62 There is 
much merit to the argument. Where the Power of Origin continues to 
exist, no valid reason can be discerned for discarding the established 
and customary procedure for the selection of either the original Pro- 
tecting Power or of a successor Protecting Power. 

It is true that there might be instances in which the Power of Origin 
fails to designate a Protecting Power — but that should not create a 
right in the Detaining Power to designate a substitute for the Pro- 
tecting Power. Such a failure by the Power of Origin would in no 
manner affect the right of the Detaining Power, in its capacity as a 
Power of Origin, to designate a Protecting Power to act on its behalf 
in its enemy's territory. The Power of Origin that does arbitrarily 
refuse to designate a Protecting Power to act on its behalf may believe 
that it has good reasons for so doing — and it should not be told that if 
it does not take specific action to provide protection for the captured 
members of its armed forces, its enemy, the Detaining Power, will 
have the right to do so. 



61 1971 GE Documentation, II at 13 ; accord, Knitel, Less Delegations du Comite 
International de la Croix-Rouge 88. Even in his attempt to justify the provisions 
of the second paragraph of Article 10, Siordet concedes that the provision is not 
"clear." Siordet, Scrutiny 59-60. 

62 2B Final Record 29, 347, & 351. 



273 

The major objection to the procedure contemplated by paragraph 
two of Article 10 is that situations may arise in which, through no 
fault of the Power of Origin, it has no Protecting Power, and, before 
it can take action to remedy this deficiency, the Detaining Power 
exercises its power under the second paragraph of Article 10, desig- 
nating a weak and friendly "neutral" State as a substitute for a Pro- 
tecting Power, and then refusing to concur in the designation of a 
true Protecting Power by the Power of Origin on the ground that 
there is no need for such a designation. To accomplish this it might 
refuse to concur in the designation of a Protecting Power named 
by the Power of Origin, or it might withdraw a concurrence previ- 
ously given, or it might take action before a Protecting Power could 
be appointed at the onset of hostilities, or it might take action when a 
Protecting Power has withdrawn and there has not been time for the 
Power of Origin to go through the full procedure for the designation 
of a successor Protecting Power. All of these examples fall within the 
clause "no matter for what reason" ; in none of them is there justifica- 
tion for unilateral action by the Detaining Power. 63 

All of the Communist countries (and Portugal) made reservations 
to Article 10 to the general effect that they would not recognize as 
legal "requests by the Detaining Power to a neutral State or to a 
humanitarian organization, to undertake the functions performed by 
a Protecting Power, unless the consent of the Government of the coun- 
try of which the prisoners of war are nationals has been obtained." 64 
While there is a perhaps not unnatural tendency to view with suspi- 
cion this position, taken at Geneva almost uniquely by the Soviet Union 
and its satellites, 65 it appears to have a valid basis. If there is a Power 



63 Pictet insists that the second paragraph of Article 10 "does not affect the 
process of appointment of the Protecting Power" and that successor Protecting 
Powers are not "substitutes" for prior Protecting Powers. Pictet, Commentary 
117-18. The latter statement is completely correct. See note 56 supra. While his 
statement indicates the opinion that this paragraph of Article 10 was not intend- 
ed to affect the process of appointment of Protecting Powers, nowhere does he 
even attempt to explain the significance of the clause "no matter for what reason." 

64 Reservation of the Soviet Union to Article 10 of the 1949 Prisoner-of-War 
Convention, 191 U.N.T.S. 367, maintaining the reservations made at the time of 
signing, 75 U.N.T.S. 458-60, and 1 Final Record 355. The other reservations to 
Article 10 are substantially identical to the foregoing (minor differences are prob- 
ably due to translations from different languages), except that Hungary specified 
that Article 10 "can only be applied if the Government of the State of which the 
protected persons are nationals, no longer exists." Reservation of the Hungarian 
People's Republic, 198 U.N.T.S. 338; 1 Final Record, 347. It would be interesting 
to learn why the words "country of which the prisoners of war [protected per- 
sons] are nationals" (emphasis added) were used rather than "country of which 
the prisoners of war are members of the armed forces." 

65 See, e.g., Brockhaus, The U.S.S.R. 291. All of the Communist and Communist- 
oriented countries which have adhered to the Convention since 1949 have made 
similar reservations to Article 10. 



274 

of Origin in esse, not only is its consent to the designation of a Pro- 
tecting Power to act on its behalf essential, but it has the right to 
make the selection in the first place. And the statements made at the 
1949 Diplomatic Conference by the Soviet delegates making it clear 
that they merely desired to limit the right of the Detaining Power 
to select a substitute for a Protecting Power to those cases where there 
is no existing Power of Origin was a limitation as to which there 
should have been no dispute. It is to be hoped that by overruling the 
Soviet thesis the 1949 Diplomatic Conference did not establish the 
proposition that a Detaining Power may, on its own, select and desig- 
nate a substitute for a Protecting Power even though there is a Power 
of Origin in being. 

The fourth paragraph of Article 10 establishes two requirements 
for any neutral Power or organization invited by the Detaining Power 
to perform the functions of a Protecting Power (pursuant to the sec- 
ond paragraph of Article 10) or any humanitarian organization in- 
vited by the Detaining Power or itself offering to perform the hu- 
manitarian functions normally performed by a Protecting Power (pur- 
suant to the third paragraph of Article 10) : first it must act with a 
sense of responsibility toward the Power of Origin; 66 and, second, it 
must furnish assurances that it has both the capability and the intent 
to perform the allocated functions and to perform them impartially. 67 

The fifth paragraph of Article 10 prohibits the derogation of the 
prior provisions of Article 10 by special agreements between the 
Detaining Power and the Power of Origin in those cases where the 
latter is unable to negotiate with the Detaining Power on terms of 
equality because of "military events" or the occupation of all or much 
of its territory. 68 Inasmuch as any such derogation would "adversely 
affect the situation of prisoners of war," no matter what the relative 
status of the two Powers, it was already prohibited by the last sen- 



66 This requirement clearly indicates that the designation by the Detaining 
Power of a substitute for a Protecting Power is not limited to instances where 
the Protecting Power has ceased to exist as an independent sovereignty — unless 
we are to assume that the sense of responsibility is owed to a Power of Origin 
despite the fact that it no longer exists. 

67 There is no indication as to whom the assurances are to be given. If the De- 
taining Power is to be the recipient, and there does not appear to be any other 
entity that could or should be, the provision has little meaning — except as an ex- 
hortation — as the Detaining Power, by making the selection, has disclosed its ac- 
ceptance of the competence of the particular Power or organization. 

68 The wording of the provision appears to contemplate the parallel possibility 
that the Detaining Power might be the weaker Power in the negotiations, rather 
than the Power of Origin. As a practical matter, this is inconceivable. When 
"military events" go against a Detaining Power, or its territory is occupied by the 
enemy, it ceases to be a Detaining Power. See, e.g., Article XIX of the 1940 Fran- 
co-German Armistice Agreement. 



275 

tence of the first paragraph of Article 6. 69 However, the draftsmen 
of the Convention should certainly not be criticized for employing 
what might be characterized as an excess of caution for the protec- 
tion of prisoners of war. They were unquestionably motivated by the 
events of World War II and an understandable desire to leave no 
doubt that there was a specific prohibition of such conduct in any 
future international armed conflict. 70 

c. PERSONNEL OF THE PROTECTING POWER 

Article 8 of the Convention provides in part that 
. . . the Protecting Powers may appoint, apart from their diplo- 
matic and consular staff, delegates from amongst their own na- 
tionals or the nationals of other neutral Powers. The said delegates 
shall be subject to the approval of the Power with which they are 
to carry out their duties. 
It is obvious that the Convention has accorded to a Protecting Power 
three sources of personnel for the performance of its functions as 
such Protecting Power : its diplomatic and consular officers stationed 
within the territory of the Detaining Power ; 71 others of its nationals 
specifically appointed for the purpose ; and nationals of other neutral 
Powers specifically appointed for the purpose. 

The normal and natural source of personnel for the execution of 
the functions of a Protecting Power is, of course, the diplomatic and 
consular personnel of the Protecting Power already assigned to and 
stationed in the territory of the Detaining Power. These officials, 
working under the ambassador, are experienced, they are known to 
the officials of the Detaining Power, and, perhaps most important, 
they are already present within the area in which the Protecting 
Power is to operate. It is, of course, true that they already have their 



69 It is difficult to understand why Article 10 is included in the list of articles 
in the first paragraph of Article 6 as one of the articles of the Convention ex- 
pressly providing for special agreements, inasmuch as the prohibition mentioned 
in the text is the only reference in the Article to such agreements. 

70 After France and Belgium had capitulated in 1940, and were substantially 
(France) or completely (Belgium) occupied, Germany refused to continue to 
recognize a Protecting Power for either of them and required the "governments" 
of the two countries to act on behalf of the prisoners of war whom Germany con- 
tinued to hold. 2B Final Record 112. The French "Scapini Mission" and the Bel- 
gian "T'Serclaes Mission" rarely succeeded in obtaining a solution favorable to 
the prisoners of war of any problem that arose; and frequently they acted as 
agents to fulfill German demands which violated the provisions of the 1929 Con- 
vention, rather than as "substitutes" for the Protecting- Powers. 

71 Neither the 1929 Convention nor the Stockholm Draft that served as the 
working document at the 1949 Diplomatic Conference included the term "con- 
sular" in specifying the authorized representatives of a Protecting Power. The 
authorization for the use of this category of personnel by Protecting Powers was 
proposed by Australia during the Conference and was unanimously approved. 2B 
Final Record 58. 



276 

usual functions to perform; but many of these functions disappear 
or are seriously curtailed upon the advent of war (commercial, immi- 
gration, tourists and tourism, etc. ) . While any large-scale armed con- 
flict of lengthy duration will undoubtedly make it necessary for Pro- 
tecting Powers to supplement their regular diplomatic and consular 
staff within the territory of the Detaining Power, there will be num- 
erous instances in which the Protecting Power will be able to perform 
its functions with only its normal complement of officials, at least for 
some considerable period of time and until the number of prisoners 
of war held by the Detaining Power makes necessary a buildup of 
the personnel performing the functions of the Protecting Power. Of 
course, the term "diplomatic and consular staff" includes not only 
those officials of the Protecting Power who were already stationed 
within the territory of the Detaining Power at the time of the desig- 
nation of the Protecting Power, but also any of its other diplomatic 
and consular personnel who may be sent to replace or supplement them. 
With the heavy commitments that Switzerland had during World 
War II, it would obviously have been impossible for it to have made 
even a pretense of performing its farflung responsibilities as a Pro- 
tecting Power without a considerable increase in its staffs in the 
territories of the many Detaining Powers where it had agreed to serve 
as a Protecting Power. To meet its personnel requirements in this 
respect, the Swiss Government recruited locally and in Switzerland 
and then sent to its various affected embassies and legations "camp 
inspectors," who had the assigned duty of visiting prisoner-of-war 
camps and labor detachments to assure that there was compliance by 
the Detaining Power with the provisions of the 1929 Convention. This 
is typical of the second source of Protecting Power personnel, the use 
of which is authorized by the first paragraph of Article 8 of the 1949 
Convention — the noncareer national who is selected by the government 
of the Protecting Power solely for the purpose of assisting it to per- 
form the functions of that office. 72 These individuals may also be 
nationals of another neutral Power, the third source of Protecting 
Power personnel authorized, but normally the Protecting Power would 
resort to this type of selection only after it had exhausted its own 
manpower potential. Of course, a major source of noncareer person- 
nel is to be found among the nationals of the Protecting Power (and 
of other neutral Powers) who are residing within the territory of 
the Detaining Power when the use of additional personnel becomes 



72 The Convention appears to use the term "representative" for the diplomatic 
and consular personnel of the Protecting Power and "delegate" for the noncareer 
personnel, whether nationals of the Protecting Power or of another neutral State. 
Throughout this study the term "representative" has been used to include all in- 
dividuals performing duties for the Protecting Power qua Protecting Power, with- 
out regard to their prior status. (The word "delegate" is used with respect to the 
ICRC personnel. This latter is in accordance with the Convention practice.) 



277 

necessary. The Protecting Power may find it more convenient, when it 
has exhausted the manpower pool of its own nationals residing within 
the territory of the Detaining Power as a source, to use nationals of 
other neutral Powers residing within the territory of the Detaining 
Power before resorting to the policy of recruiting its own nationals in 
its own territory and sending them to the territory of the Detaining 
Power. 73 

It will have been noted that these noncareer, or auxiliary, persons, 
selected to assist in the performance by the Protecting Power of its 
functions under the Convention, are subject to the approval of the 
Detaining Power. This provision was the occasion for considerable 
discussion at the 1949 Diplomatic Conference. No objection can be 
perceived to this procedure. The diplomatic and consular personnel 
of the Protecting Power stationed within the territory of the Detain- 
ing Power must have the normal approval of government of the 
Power to which they are accredited (agrement, exequatur) required 
for all such personnel, and any one of them may, at any time, be 
declared persona non grata by that Power. There is certainly no reason 
why the individuals who will serve as supernumeraries to the Embassy 
of the Protecting Power in the territory of the Detaining Power for 
the purposes of the Convention should be subject to fewer restrictions 
than the career personnel of the Embassy and the consular corps who 
will actually be the first to perform the functions of a Protecting 
Power for their country. 74 



73 The problem of the availability of competent personnel to serve as super- 
numeraries has been a matter of concern for a considerable period of time and 
to many organizations. See, e.g., Resolution XXII of the XXth International Con- 
ference of the Red Cross, held in Vienna in 1965, reproduced in 1971 GE Docu- 
mentation, II, at 020; Articles 2-5 of the Regulations Drafted by the Commission 
Medico- J uridique de Monaco in 1971, reproduced in U.N., Human Rights, A/ 8370, 
at 80-81 (English) and in 1972 I.L.A. Rep. 307 (French) ; 1971 GE Report 108, & 
114; 1972 Basic Texts 7; and Article 6 of the 1973 Draft Additional Protocol. 
(This latter, with some editing has become Article 6 of the 1977 Protocol I.) Thus, 
Europeans without training or experience are likely to cause problems if given 
duty in an area with a completely unfamiliar climate and culture. A camp inspec- 
tor who reports that the prisoners of war are not getting enough meat, when 
they are receiving their national diet of fish and rice, is not being very helpful; 
nor is the inspector who criticizes the Detaining Power for not providing mat- 
tresses when it has furnished the prisoners of war with the pallets on which they 
are accustomed to sleep. 

74 Siordet, Scrutiny 27. A provision of the Stockholm Draft that served as the 
working document at the 1949 Diplomatic Conference would have required a De- 
taining Power to give "serious grounds" for any refusal to approve the nomina- 
tion of a noncareer individual by a Protecting Power. Revised Draft Conventions 
54; 1 Final Record 75. This proposal was completely lacking in logic. A State need 
give no reason for refusing to agree to the assignment to a post in its territory 
of a member of the diplomatic or consular service of a Protecting Power, or for 
declaring such an individual persona non grata. Why, then, should it be required 



278 

The fear has been expressed that a Detaining Power might arbi- 
trarily refuse to approve any of the auxiliary personnel nominated 
by the Protecting Power and thereby make it impossible for the latter 
to perform its functions properly. But a Detaining Power so minded 
could also, and with equal ease, arbitrarily decline to grant the neces- 
sary agrement or exequatur to replacement or supplementary diplo- 
matic or consular personnel of the Protecting Power, or even declare 
persona non grata a number of the persons in these categories already 
serving within its territory. Any of these acts would constitute a viola- 
tion of the spirit, and probably of the letter, of the Convention. More- 
over, the Protecting Power, a friendly neutral Power, might well con- 
sider any such action by the Detaining Power as an unfriendly act. 

Requiring the Detaining Power's approval of the individual super- 
numeraries is also logical from another standpoint. The individuals 
concerned will, in the performance of their duties, be required to do 
considerable traveling in a country at war. Any country at war will 
have instituted controls on the right to enter into and to travel within 
its territory. To tell it that it must accept anyone selected by the Pro- 
tecting Power, even though it has good reason not to trust the par- 
ticular individual, is to close one's eyes to the facts of life. And for 
this same reason, the Detaining Power must retain the right to declare 
members of the staff of the Protecting Power persona non grata, 
whether the individual concerned has diplomatic, consular, or auxiliary 
status. 

It has been stated that the representatives of the Protecting Power 
engaged in fulfilling its obligations in the territory of the Detaining 
Power, have a triple responsibility : to their own government ; to the 
government of the Power of Origin; and to the government of the 
Detaining Power. 75 If this is another way of saying that these indi- 
viduals must be completely neutral and unbiased, it is correct. It would, 
however, be less controversial to state, as did United States Secretary 
of State Bryan in 1914, that they are "representatives of a neutral 
power whose attitude toward the parties to the conflict is one of im- 
partial amity." 76 

d. FUNCTIONS OF THE PROTECTING POWER 

With only a very few exceptions, the draftsmen of the 1949 Con- 
vention apparently thought it best to avoid any attempt to specify in 
detail the functions of a Protecting Power or even to include functions 
in the form of specific powers granted to a Protecting Power. Most 
frequently the functions are expressed either in the form of duties of 



to do so with respect to noncareer supernumeraries? The provision of the Stock- 
holm Draft was deleted at Geneva. 2B Final Record 58, 110. 

75 de LaPradelle, Le controle 344. See also note 27 supra. 

76 See note 11 supra. See also Franklin, Protection 114. 



279 

the Detaining Power or of rights of the prisoners of war. Where a 
precedent had previously been established, it is usually set forth in 
appropriate detail. Where no precedent had previously been estab- 
lished, the problem is frequently left to ad hoc decision. It was prob- 
ably anticipated that such problems would be solved by the Protecting 
Power through the exercise by it of the basic power guaranteed to it 
by the first paragraph of Article 8, that of surveillance to ensure that 
there is, at all times, full compliance with the provisions of the Con- 
vention; reinforced by the provisions of the second paragraph of 
Article 8, which require the belligerents to facilitate "to the greatest 
extent possible" the work of the Protecting Powers. Should a Pro- 
tecting Power ascertain that there is a default in the performance by 
the Detaining Power with respect to a particular provision, it is prob- 
ably assumed that it will advise the Detaining Power thereof, and find 
some means of procuring a correction of the situation, even though 
the procedure by which it is to accomplish this is not specified. 77 

Nevertheless, the Convention does contain repeated references to 
the institution of the Protecting Power and a function may usually 
be implied in a particular instance merely from such reference. It is 
indeed difficult to categorize these varied references to the Protecting 
Power. Extremely broad categories are required and even then not 
every function will fall within them. Several partially successful 
efforts have been made to list these references on a functional basis. 78 
This discussion will consider them under three very general categories : 
(1) powers and duties; (2) liaison functions; and (3) miscellaneous 
functions. 

(1) Powers and Duties 
The basic and overriding power granted to a Protecting Power by 
the 1949 Convention is, of course, that contained in the' first paragraph 
of Article 8, the very first sentence of which, as we have seen, states 
that the Convention "shall be applied with the cooperation and under 
the scrutiny of the Protecting Powers whose duty it is to safeguard 
*the interests of the Parties to the conflict." 79 Strangely enough, the 



77 At the 1949 Diplomatic Conference the representative of New Zealand, Quen- 
tin-Baxter, made the following statement: "It is not the function of the Protecting 
Power to command or to overrule : it is its f uction to observe, to comment, to make 
representations, and to send reports to the outside world. If we are faced with an 
unscrupulous belligerent, the presence of the Protecting Power and the ability of 
the Protecting Power to examine what is going on and to observe is the only pre- 
ventive measure which we have." 2B Final Record 344. 

78 Thus, Heckenroth, Puissances protectrices 135 and Janner, Puissance pro- 
tectrice 52, have each listed seven separate categories of functions of the Protect- 
ing Power, but the lists coincide with respect to only four functions. Still a third 
functional listing appears in Pictet, Commentary 98-99 (reproducing a list that 
had originally appeared in Siordet, Scrutiny 73-75). 

79 See p. 262 supra. 



280 

only extended debate on this extremely crucial article that took place 
at the 1949 Diplomatic Conference concerned the selection of the 
proper word to characterize the activities of the Protecting Power, and 
that debate, it developed, occurred primarily as a result of difficulties 
of translation. The delegates at the Conference were agreed that the 
Protecting Power could not give orders or directives to the Detaining 
Power. The idea desired to be conveyed was that the authority of the 
Protecting Power would entitle it to verify whether the Convention 
was being properly applied and, if necessary, to suggest measures on 
behalf of prisoners of war. 80 In the text of the Stockholm Draft, the 
working draft used at the 1949 Diplomatic Conference, the words 
"under the supervision of the Protecting Powers" were used in the 
English version and the words "sous le controls des Puissances pro- 
tectrices" in the French. This was acceptable to the French-speaking 
delegates but was opposed by those whose mother tongue was English. 
It eventually became apparent that the two groups were actually in 
agreement and that the seeming dispute had arisen because the word 
"controle" in French is much weaker than either "control" or "super- 
vision" in English. The English-speaking delegations were given a 
choice of a number of words to be used as a counterpart for the French 
word, and unanimous agreement was ultimately reached on the word 
"scrutiny." 81 

The importance of the first paragraph of Article 8 may, perhaps, 
be found to lie in the very generality of its phrasing. The fact that 
the entire Convention is to be "applied with the cooperation" of the 
Protecting Power undoubtedly empowers the latter to make sugges- 
tions to the Detaining Power with a view to the improvement of the 
lot of the prisoner of war even with respect to areas in which no 
specific reference is made to the Protecting Power. Thus, a Protecting 
Power might suggest to, and seek to obtain the agreement of, the 
Detaining Power that certain specified types of offenses committed 
by prisoners of war be uniformly punished by disciplinary rather 
than judicial measures, even though Article 83 contains no reference 
to the Protecting Power. Similarly, the fact that the Convention is 
to be applied "under the scrutiny" of the Protecting Power undoubted- 
ly empowers it to investigate, and to request reports from the Detain- 
ing Power, in unspecified areas. Thus, a Protecting Power might seek 
from the Detaining Power a complete report as to the reason for the 
prohibition of correspondence, even though Article 76, dealing with 
this subject, contains no mention of the Protecting Power; and, again, 
it might seek a report as to the action taken with respect to a com- 
plaint made by a prisoner of war or a prisoners' representative, 



so 2B Final Record 110. 

81 Ibid. For some of the many English words proposed, see ibid., 19-20 & 57-58. 
See also Siordet, Scrutiny 24-25. 



281 

through the Protecting Power, regarding the conditions of capitivity, 
even though the second and fourth paragraphs of Article 78, which 
provide for such complaints, do not specifically provide for such 
reports. 

The first two paragraphs of Article 126 empower the representa- 
tives of the Protecting Power to visit all places where prisoners of 
war may be, themselves selecting the places they will visit and de- 
termining the frequency of the visits ; to have access to all premises 
where prisoners of war are confined ; to go to the place of departure, 
passage, and arrival of prisoners of war who are being transferred ; 82 
and to interview prisoners of war and prisoners' representatives with- 
out witnesses. 83 The background of these provisions warrants dis- 
cussion. 

As we have seen, the difficulties encountered by Protecting Powers 
early in World War I gradually disappeared and, before its conclu- 
sion, the Protecting Powers were generally enabled by the Detaining 
Powers to visit and inspect prisoner-of-war camps. 84 Thereafter, the 
second paragraph of Article 86 of the 1929 Convention authorized 
the Protecting Power to visit any place, "without exception," where 
prisoners of war were interned. 85 Despite the clear import of this 
provision, early in 1940 problems were again encountered in this 
area. 86 However, apart from Japan, and, to some extent, Germany, 
the Detaining Powers and the Protecting Powers of World War II 
were largely able to resolve these difficulties in due course. Unfortun- 
ately, even though the problem which had arisen with regard to visits 
to prisoner-of-war camps in occupied territories was well known, the 
draftsmen of the 1949 Convention took no clear-cut action to ensure 
against its recurrence. True, the first paragraph of Article 126 author- 
izes the representatives of the Protecting Power "to go to all places 
where prisoners of war may be, particularly to places of internment, 



82 See pp. 187-194 supra. 

83 See p. 283 infra. 

84 See note 13 supra. See also Charpentier, La Convention de Geneve 38-39. 

85 Two widely disparate authors have termed this the most important activity 
of the Protecting Power (Janner, Puissance protectrice 52) and one of the most 
important safeguards for prisoners of war (Mason, Prisoners of War 41). 

86 6 Hackworth, Digest at 285. In particular, difficulties continued to be en- 
countered with respect to visits to prisoner-of-war installations located in oc- 
cupied territories despite the "without exception" clause in the 1929 Convention. 
Ibid.; I.M.T.F.E. 1129. (Article XI of the 1917 Anglo-Turkish Agreement had 
specifically excluded prisoner-of-war camps located in occupied territory from 
those which the representatives of the Protecting Powers would be permitted to 
visit. It may be assumed that this was one of the reasons for the "without excep- 
tion" provision in the subsequently drafted 1929 Convention.) 



282 

imprisonment and labour" ; 87 and the second paragraph thereof states 
that such representatives "shall have full liberty to select the places 
they wish to visit" ; and it was without any doubt the intent of the 
1949 Diplomatic Conference that these broad provisions should in- 
clude prisoner-of-war installations located in occupied territories. 
However, any possibility of a dispute with regard to the interpreta- 
tion of the quoted provisions could have been completely eliminated 
by merely adding the phrase "including those located in occupied 
territories" wherever appropriate. This was particularly desirable 
because the omission of the words "without exception" could arguably 
be construed as an intent to make the visitation privilege granted by 
the first two paragraphs of Article 126 less all-inclusive than it had 
been under the second paragraph of Article 86 of the 1929 Convention. 

During World War II a number of Detaining Powers required that 
the Protecting Powers provide them in advance with a schedule of 
proposed visits to prisoner-of-war installations. This was sometimes 
justified by the provision of the third paragraph of Article 86 of the 
1929 Convention, which stated that "[t]he military authorities shall 
be informed of their visits." During World War I it had frequently 
been found that this type of requirement rendered the inspection com- 
paratively ineffective; 88 and events of World War II disclosed the 
same deficiency. 89 The quoted provision of Article 86 of the 1929 Con- 
vention was omitted from Article 126 of the 1949 Convention, which 
may be considered to be the successor article. However, there is no 
specific rejection of the requirement, and it is unlikely that Detaining 
Powers will discontinue the practice of requiring advance notice of 
visits of inspection by representatives of the Protecting Power. 90 

The procedure followed by the representatives of the Protecting 
Powers in conducting an inspection of a prisoner-of-war installation 
is not prescribed in detail 91 and will largely be determined by the 

87 The right of visitation granted by the first paragraph of Article 126 is iter- 
ated in Articles 56 as to labor detachments ; 98 as to prisoners of war undergoing 
disciplinary punishment; and 108 as to prisoners of war undergoing judicial 
punishment. 

88 United Kingdom, Foreign Office, The Treatment of Prisoners of War in Eng- 
land and Germany during the First Eight Months of the War 8 (1915) ; Charpen- 
tier, La Convention de Geneve 39 & 43. 

89 Maughan, Tobruk 763 ; Mason, Prisoners of War 42. The ICRC delegates 
labored under the same handicap. 1 ICRC Report 230 & 244. 

90 United States Military Assistance Command, Vietnam (MACV), Directive 
190-6, 22 September 1970, Military Police; ICRC Inspection of Detainee/ Prisoner 
of War Facilities, para. 6a, specified the action to be taken "[u]pon receipt of 
proposed itinerary of the ICRC delegation." In recommending the deletion of the 
provision requiring notice to the military authorities prior to a visit to a prisoner- 
of-war installation